Jailing of County Clerk Highlights Religious Rights of Employees

Posted 09-09-2015

The jailing of Kentucky county clerk Kim Davis for refusing to issue marriage licenses to gay couples may have you wondering what you are legally required to do if your employees refuse to perform their tasks for religious reasons. As a recent case makes clear, it can cost employers half a million dollars or more if you don’t do the right thing.

As an elected official, Ms. Davis is not covered by employment laws. If she had been an employee, the result could have been completely different. That’s because employers are required to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would create an undue hardship.

Undue hardship in religious accommodation is a far lower standard than undue hardship under the Americans with Disabilities Act (ADA). To prove undue hardship, the employer needs to show how much the proposed accommodation would cost. You can’t base the cost on assumptions that “everyone” will want an accommodation. And although infringing on co-workers’ ability to perform their duties may be considered undue hardship, it requires more than proof that some co-workers complained; it requires evidence that the accommodation would cause disruption of work.

When an employee’s religious belief conflicts with a particular task, accommodations may include relieving the employee of the task. For example, in a Court of Appeals case, Neil, a pharmacist, was hired by a large corporation that operates numerous large pharmacies at which more than one pharmacist is on duty during all hours of operation. Neil informed his employer that he refused on religious grounds to participate in distributing contraceptives or answering any customer inquiries about contraceptives.  The employer reasonably accommodated Neil by offering to allow him to signal to a co-worker who would take over servicing any customer who telephoned, faxed, or came to the pharmacy regarding contraceptives.

How much can it cost an employer if it doesn’t accommodate? In August, 2015, a federal court awarded more than half million dollars in a religious accommodation case. An employee who worked as a mine laborer for over 35 years requested an accommodation when the company started requiring employees to use a biometric hand scanner to track time and attendance. The employee informed the company that the scanner violated his sincerely held religious beliefs as an Evangelical Christian about the relationship between hand-scanning technology, the “Mark of the Beast,” and the Antichrist discussed in the New Testament’s Book of Revelation. The company refused to use any other method to track his time and attendance, and told him he would be fired if he did not comply. He was forced to retire instead, sued, and won.

What you should do:

To be successful, managers need to know how to handle requests for religious accommodation. Fair Measures offers training on handling religious accommodation requests. A crucial employment law training class, it includes case studies and small group exercises, all led by our experienced attorney-trainers.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2015-09-09T18:34:43+00:00

About the Author:

Rita M. Risser Chai is the founder of Fair Measures. An attorney in California for 20 years and now an attorney in Hawaii, she authored the Prentice Hall book, Stay Out of Court! The Manager’s Guide to Preventing Employee Lawsuits. She developed most of the curriculum used by Fair Measures, created the firm’s first website praised in HR Magazine, and wrote numerous articles on employment law including one on best practice harassment prevention training published in the magazine of the American Society for Training and Development (now ATD). She taught Law and Human Resources at the University of California, Santa Cruz, for eight years, and has presented four times at the annual conventions of the Hawaii Society of Human Resource Management.