The Supreme Court’s recent decision on same sex marriage, in Obergfell v. Hodges was a world changer for millions of United States citizens, the majority of whom do not identify themselves as “gay” but also includes millions that have a different sexual preference. For many citizens who are deeply religious, recent events have made them ask the question: “What happens when the world changes and others demand that I behave differently in the way I do business?” “Are my religious beliefs worth losing my job?” The answers are difficult, and sometimes are not easily answered by legal authorities, public officials, government employees or private employers. In other words, the Supreme Court’s decision in Obergfell could impose difficult changes on both employees and employers in private and public employment.
In one case, Kim Davis, a publicly elected Clerk of the Court in Rowan County, Kentucky, refused to perform or approve gay marriages in that county. Marriage licenses cannot be issued without the authority of the Clerk of the Court. Ms. Davis refused to issue licenses and interfered with other deputy clerks seeking to issue marriage licenses by refusing to authorize them to issue the licenses. She was recently sent to jail for contempt of a federal judge’s order and will remain there until she agrees to perform her public duties as Clerk; alternatively she holds the “door to the jail house door” she can get out of jail if, but only if she agrees not to interfere with others in the Clerk’s Office in issuing marriage licenses. On September 8, 2015, the federal judge released Ms. Davis with the proviso that she cannot interfere with deputy clerks issuing the marriage licenses. This is an “accommodation” that balances Ms. Davis’ religious freedom rights with the right of citizens in Rowan County to obtain marriage licenses.
State and federal government employees as well as elected or appointed public officials are elected to enforce and carry out the duties of their position and, in many cases, the law of the land. At the same time, all citizens are entitled to request reasonable accommodation if their job responsibilities impinge on their right to exercise their First Amendment right of freedom of religion. If there is no reasonable accommodation, however, they must either change jobs, obey the law, or refuse to so at their peril because at some point, the needs of the employer or the rights of other citizens are unduly burdened by the individual’s exercise of rights.
Many believe that elected officials or state and federal government employees must “take the bitter with the sweet.” Public officials cannot establish their private religious principles when they occupy a public office. The laws must be applied uniformly and in accordance with state law and the Constitution, as interpreted by the Supreme Court. In any event, Ms. Davis can now exercise her freedom of religion and have nothing more to do with issuing marriage licenses to same-sex couples. Given the political rhetoric, it appears that the Court’s release of Ms. Davis will not end the matter. Legislative action will likely be proposed at the state or federal level.
Turning to private employers, the law requires that, if an employee seeks accommodation for their religious beliefs, the employer must accommodate by modifying the job duties for that employee or try to find a similar position at a similar position within the company or organization. This is an interactive process that may, in some cases, allows employers to offer employees living in Baltimore a position in a in Texas to accommodate their requests. This often means decreased wages/salaries or moving to a part of the state or country that is undesirable to that employee. If that is the only position available fitting the job description, then the Company need go no further and terminate the employee unless they accept that reassignment.
In a case involving a flight attendant who recently converted to Islam, the airlines attempted to accommodate her religious beliefs when she refused to serve alcoholic beverages to passengers. ExpressJet agreed to give Ms. Stanley a religious accommodation, saying she could work out an arrangement with the other flight attendant on duty so they could serve alcohol instead. A co-worker apparently complained about Ms. Stanley’s refusal to serve alcohol and reportedly complained about Stanley carrying a book with “foreign writings” and wore a head scarf. Ms. Stanley was placed on one year unpaid leave for following the instructions given by ExpressJet airlines.
A lawyer for Ms. Stanley contends that the co-worker agreed to the accommodation and that the arrangement worked perfectly (for two months) until the co-worker recently complained about the head scarf and writings. A lawyer for the Michigan chapter of the Council on American-Islamic Relations stated: “What this case comes down to is no one should have to choose between their career and religion and it’s incumbent upon employers to provide a safe environment where employees can feel they can practice their religion freely.”
The airplanes operated by ExpressJet reportedly seat less than 50 passengers, so accommodation is difficult because the accommodation may pose an “undue burden” on other flight attendants and potentially results in poor service to passengers. At this point, Ms. Stanley has not indicated a willingness to accept a different job, and insists that the original arrangement be followed because it did not pose an undue burden on the airlines for the two months it was successful.
Hard cases make hard law. A court could find against ExpressJet for refusing to continue the accommodation arrangement reached with Ms. Stanley. If this was the first time that the other flight attendant objected to the accomodation, and did so on the basis of the head scarf and carrying around a book with “foreign writing”, then ExpressJet may have disciplined Ms. Stanley for reasons unrelated to serving alcohol, such as a personal appearance or conduct policy. However, the accommodation itself (unless in writing) is a very unclear arrangement because, as stated, the flight attendant on each flight, who is expected to accommodate, may arguably refuse to accommodate because ExpressJet has the duty to accommodate, not the employee. An employee may argue that Ms. Stanley has no right to make her work harder than other flight attendants.
As a practical matter, we must view each of these cases separately and distinctly based on the facts and the law, assessing personal risk and the risks to the ability of companies to reasonably accommodate every religious group or individual seeking what the law may allow— a reasonable accommodation for sincerely religious beliefs. We must also recognize that if a reasonable accommodation cannot be made, the employer can place the employee on unpaid leave until an alternate job becomes available, as in the case of ExpressJet, or terminate the employee because the same or similar jobs are not available or accepted by the employee.
What do you think?