Maintaining a diverse workforce is increasingly necessary for companies to be competitive and successful in the global marketplace. But what happens when diversity, equity, and inclusion (DEI) initiatives collide head-on with your obligation to accommodate an employee’s religious beliefs? Employers are facing such dilemmas with increasing frequency as they build and strengthen their efforts toward a diverse and equitable workplace.
Title VII’s Protections Come Into Play
In the wake of the U.S. Supreme Courts Bostock v. Clayton County decision recognizing that LGBTQ+ employees are protected by Title VII of the Civil Rights Act of 1964, employers are increasingly finding themselves in the difficult position of having to weigh often diametrically opposed rights: religious freedom versus LGBTQ+ rights. How do you choose? It’s simple: You don’t.
The rights (one employee’s “sincerely held religious beliefs” versus another worker’s gender identity/transgender status and sexual orientation) are both protected by Title VII and other state and local laws:
- For LGBTQ+ employees, Title VII prohibits discrimination and harassment based on gender identity/transgender status and sexual orientation.
- The law also requires employers to reasonably accommodate their employees’ religious observances, practices, and beliefs unless doing so would be an “undue hardship” (which isn’t a high bar to clear).
An “undue hardship” is defined as any accommodation that would impose more than a de minimus or trivial cost on the employer’s operations (a much lower standard than used for disability accommodations, even though similar terms are used). As a result, in many situations, you could deny religious accommodations because of the difficulty or expense. But that isn’t the solution.
Although some religions strongly oppose LGBTQ+ initiatives as being contrary to their faith, employers can satisfy both groups while building bridges and expanding knowledge in the process. When you address the situations correctly, religious and LGBTQ+ employees can not only coexist but also thrive in an inclusive and diverse workplace.
Courts Have Strived to Find Some Balance
Thankfully, employers aren’t left to operate in a vacuum. Courts have considered similar issues over the last few decades, most finding that even diversity initiatives can be subject to religious accommodation.
For example, a Christian employee refused to sign an antidiscrimination policy that required employees “to fully recognize, respect and value the differences.” The employee claimed since Christianity considers some behavior to be sinful, he couldn’t “value” it, so the employer fired him. But a federal district court in Colorado found the employer could have accommodated the individual without suffering any undue hardship by making a minor revision to the policy’s language, i.e., by requiring employees to “fully recognize, respect and value that there are differences among all of us.”
In another example, a former barista in New Jersey sued a coffee chain claiming she was wrongfully terminated after refusing to wear a “PRIDE” T-shirt because of her religious beliefs. Also, currently pending before the U.S. District Court for the Eastern District of Arkansas is a case filed by the Equal Employment Opportunity Commission (EEOC) against a grocery store on behalf of an employee who refused to wear a rainbow-colored heart emblem endorsing LGBTQ+ values. The matter is set for trial in March 2022.
Some Courts Have Upheld LGBTQ+ Rights
In EEOC v. Harris Funeral Homes (a decision also addressed by Bostock, albeit on other grounds), a funeral home terminated the employment of its transgender funeral director. The 6th Circuit rejected the employer’s reliance on religious beliefs as a defense to the employee’s Title VII discrimination claim.
More recently, a federal district court found an employer didn’t violate Title VII by not accommodating an employee who opposed the employer’s practice of displaying a Pride flag during Pride month. The court noted merely expecting the employee to attend work in the same location that a Pride flag was displayed didn’t amount to asking him to adhere to a conflicting employment requirement.
What Employers Should Do
Despite the hurdles, you shouldn’t shy away from your diversity initiatives. Instead, consider each accommodation request independently, understanding the unique facts of the specific situation and knowing no “one-size-fits-all” response will achieve the balance needed for a harmonious and cohesive workforce.
When an employee requests a religious accommodation, you must consider it but aren’t required to provide the specific solution requested, or even the employee’s ideal accommodation, so long as the one you select is “reasonable.” Furthermore, you are never required to grant an accommodation that would eliminate one of the employee’s essential functions.
For example, an employee’s request to avoid actively participating in LGBTQ+ inclusion initiatives during Pride Month may be reasonable. But transferring an employee to a role that doesn’t require interaction with coworkers because of their LGBTQ+ status is not.
Faced with a clash between your DEI initiatives and an employee’s request for religious accommodation, you should carefully consider whether both can be accomplished. You may need to resort to inventive solutions to accommodate the needs of all employees.
Bottom Line For Employers
Don’t be dissuaded from promoting DEI efforts in your workplace or supporting both LGBTQ+ and religious workers, vendors, and customers. Developing a training program that demystifies different groups’ underlying tenets and culture, whether LGBTQ+ or religious, will go a long way toward increasing understanding and bridging the perceptual chasm that will only get wider unless you continue to make efforts to bring people together.
Your initiatives to create and promote a diverse workforce will give employees a sense of belonging and interconnection and ultimately improve their morale and performance. And yes, that includes accommodating employees’ sincerely held religious beliefs that run contrary to your DEI efforts. Even when a religious employee’s requested accommodation isn’t reasonable or is an “undue hardship,” those of you who make the effort to explore the underlying concern, address the issue, and champion inclusivity for all will be rewarded with employee loyalty and longevity and a benefit to the bottom line.
You can reach FordHarrison LLP attorneys Johanna G. Zelman (managing partner of the firm’s Hartford, Connecticut office) at firstname.lastname@example.org, Dawn Siler-Nixon (the firm’s diversity and inclusion partner in Tampa, Florida) at email@example.com, and Melissa M. Castillo (an attorney in the Tampa office) at firstname.lastname@example.org.