HR Management & Compliance

Religious Discrimination: Religious-Affiliated Employer Liable For Firing Worker Who Was Saving Souls On Company Time; Guidelines To Follow

Employers affiliated with a religion generally aren’t subject to the state Fair Employment and Housing Act, California’s anti-discrimination law. But in a new case, a California Court of Appeal allowed a worker to make an end run around the statute and sue an employer who was exempt from the FEHA for religious discrimination. We’ll explain why and offer guidelines for restricting religious activity at work.

Clerk Fired For Preaching

Terence Silo was a file clerk in the medical records department of CHW Medical Foundation, a Catholic-affiliated medical center. Silo, a devout Christian, frequently told co-workers about Christianity, said Jesus loved them and asked them not to take God’s name in vain in his presence. The human resources manager warned Silo not to “soul save” at work but Silo continued preaching. After employees complained that his religious solicitation was harassing them, Silo—already on probation for poor work performance—was fired.


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Employee Sues For Discrimination

Silo sued CHW, saying he was treated differently than non-Christian employees and that CHW failed to accommodate his sincerely held religious beliefs. He also claimed his firing violated public policy because the state constitution forbids religious discrimination. CHW argued that as a religious-affiliated nonprofit corporation, it was exempt from the FEHA. CHW also contended that no clear public policy prohibits a religious employer from taking religion into account in making employment decisions. But the jury returned a verdict for Silo, awarding him $6,305 plus a whopping $156,245 in attorneys’ fees. CHW appealed.

Firing Violates Public Policy

A California Court of Appeal upheld the jury’s verdict for wrongful termination in violation of public policy. The court explained that the California Constitution expressly prohibits discrimination against employees because of their religious practices unless reasonable accommodation would cause the employer undue hardship.However, the court threw out Silo’s FEHA claim. The court said that at the time Silo filed his case, qualified religious entities were completely exempt from FEHA requirements. But it’s important to note that the law has since changed, and Silo’s FEHA claim would be decided differently today. The FEHA now prohibits discrimination by religious-affiliated employers that hire workers to perform nonreligious jobs at health care facilities. This applies only to facilities that don’t restrict their medical services to members of the affiliated religion.

Court OKs Attorneys’ Fees

The court also upheld the unusual attorneys’ fee award on Silo’s claim of wrongful termination in violation of public policy. Attorneys’ fees are not normally available unless the claim is brought under a statute that specifically authorizes them. Although no such statute applied here, the court said attorneys’ fees were warranted because Silo had enforced a significant right affecting the public interest.

Guidelines To Follow

Because of the expanded FEHA coverage, it’s now even more critical for employers to be cautious about restricting religious activity. Here are some guidelines to follow:

     

  1. Don’t ban all religious discussions. Generally you can restrict religious discussions if necessary to maintain discipline or a professional work environment or to protect other workers’ rights. This means you can discipline someone who disrupts work with religious proselytizing but you can’t ban all religious speech.

     

  2. Adopt neutral policies. Make sure your policies don’t discriminate among religions. For example, if you allow employees to display Christmas mangers, you must also permit other religious symbols such as Hanukkah menorahs. And if workers can post non-work material on an employee bulletin board or outside cubicles, you must also permit them to tack up religious messages.

     

  3. Consider religious accommodations. Work with employees to try to find a reasonable accommodation that won’t cause undue hardship, such as allowing religious discussions during off-duty times.

 

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