Employment Law Test, Question Two.

Darrell VanDeusen
Darrell VanDeusen

Ok, class, today’s quiz involves religious discrimination.  There’s been a lot of discussion in the news lately about when it is acceptable to act on your religious beliefs regardless of how your actions affect the interests of others.  This becomes a bit tricky when employment discrimination law says you cannot treat people differently, but then someone claims that their religious views require it.

For example, “my religion doesn’t permit me to work with transgender individuals” is one I have heard before.  I then explain that (particularly useful when state or local law specifically protects gender identity), if you substitute someone’s race or sex in place of “transgender,” you will see that position simply Does. Not. Work.

Recently, we saw the Supreme Court noodle over a similar issue in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018).  The holding was less than what everyone wanted, since the 7-2 decision focused on the on narrow finding that Commission did not employ religious neutrality in considering the case.  The Court stopped short of looking at the broader question of the intersection of anti-discrimination laws, free exercise of religion, and freedom of speech.

Earlier this year the current administration’s Department of Health & Human Services said that it is creating a “Conscience and Religious Freedom” division in its Office of Civil Rights to give health care providers a way to object to engaging in procedures that are inconsistent with their religious views.  The proposed rule is in process of being reviewed now.   The concern here is that a health care provider could put a patient’s life in jeopardy because he or she has religious objections to a performing a particular procedure or helping a particular patient.

It’s a hot topic, for sure.  But what about just plain old regular employment discrimination?  Most of us understand that in a non-sectarian job, an individual’s religious views should not have any impact on his or her work.   The most common challenges for employers are providing time off for religious observance (whether it’s “I cannot work on my Sabbath” or “I need a quiet place to pray three times a day at work”) or making some other reasonable accommodation.  The Supreme Court held in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), that, the accommodation need be no more than de minimis.  That means minor. Most employers have no problem making reasonable religious accommodations.

And that brings us to today’s case: the one where no [intended] good deed goes unpunished.  In Coleman v. Dahled Up Construction, Inc., No. 18CV37222 Cir. Ct. Oregon, Linn Co. (filed Aug. 22, 2018), Ryan Coleman alleges that he was fired from his construction job because he did not want to attend mandatory Bible study meetings.  The owner of the company who is, according to news reports, a recovered drug and alcohol user, said he is a second-chance employer who hires felons and recovering addicts. He brings in a local pastor once a week to help keep these guys on the straight and narrow.  Good intentions, to be sure.

The complaint alleges that Coleman was hired as a painter and learned that he was required to attend Christian Bible study as part of his employment.  Coleman expressed discomfort with attending the Bible study meetings (according to his lawyer, Coleman is half-Native American who says his “church is a sweat lodge, his bible is a drum, and that’s his form of worship to the creator”).   The company owner made him go to Bible study anyway, and so he did for a few months.

Coleman claims that when he finally said he could no longer participate in Bible study, he was fired.  The company’s lawyer, in news reports, said “[w]e believe that this requirement was not illegal.  These are at-will employees and they were paid to go. It was part of their job, so they were expected to attend.”   Buzzzzzzzzzzzzzz.  Oh, I’m sorry. Wrong Answer.  (Try this one: “Here at Sally’s Bookstore, we pay our workers to participate in mandatory live animal sacrifices in the parking lot once a week.”)

At-will employment has nothing to do with it.  I guess it’s possible the company’s lawyer has not devoted too much time in the practice of employment law.  Unless you are a religious organization, making your employees participate in a religious ceremony is, in fact, nearly always direct evidence of a violation of federal or state anti-discrimination laws.  You can offer voluntary participation to be sure, but you cannot make it mandatory.  That’s the other side of the same coin as refusing to let an employee observe his or her own religious tenets.

The take-away?  Unless you are a religious organization, do not compel your employees to do anything that is religious.  And God bless you for that.

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