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I’m an HR representative at an advertising agency based in New York City. We have a question about a religiously vocal employee. Recently she has made her opinions on homosexuality known to her entire department, emailing bible passages and lecturing her coworkers about what she calls “sinful” activity. Employees have complained. She says her religion obligates her to speak out. Last week she walked out of our annual anti-discrimination and harassment training during the module on sexual orientation and gender identity. We previously exempted her from the company’s mandatory COVID-19 vaccine policy based on her sincerely held religious beliefs. Now she claims the exemption extends to this training and her religious obligation to “spread God’s word.” Do we really need to accommodate her on this point? Where is the line?
—Big Questions in the Big Apple
Dear Big Apple:
If only such lines were clearly drawn! As you have discovered, an employee’s expression of their religious beliefs can negatively affect the rights of others in the workplace. So, let’s discuss the delicate balancing act you face.
That you allowed an employee to refuse the COVID-19 vaccine based on her religious objections to it does not mean every religious objection must be accommodated. Each request must be evaluated on a case-by-case basis.
As you likely learned from the interactive process regarding her vaccine objection, under the religious discrimination provisions of Title VII of the Civil Rights Act, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents them from engaging in some term or condition of work, the employer must provide a reasonable accommodation unless doing so would pose an undue hardship.
The standard for identifying an undue hardship under Title VII is that it involves “more than a de minimis cost” to the employer. This is a lighter burden for the employer to meet than the undue hardship standard under the Americans with Disabilities Act (ADA), which is “significant difficulty or expense.” Some states, however, have their own EEO laws that apply the ADA’s more rigorous standard to religious accommodation.
Generally, the factors for determining undue hardship include, but are not limited to, the type of workplace at issue, the nature of the employee’s duties, the identifiable cost of accommodation in relation to the size and operating costs of the employer, and the number of employees who will need a particular accommodation. It may be deemed an undue burden to provide a religious accommodation if doing so diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work.
In your situation, there are several employee actions at issue. First, let’s address the proselytizing. As the EEOC’s religious discrimination guidance makes clear, “[r]eligious expression can create undue hardship if it disrupts the work of other employees or constitutes—or threatens to constitute—unlawful harassment. Conduct that is disruptive can still constitute an undue hardship, even if it does not rise to the level of unlawful harassment.”1 You indicated the employee’s actions were disruptive enough to prompt fellow employee complaints. Religious expression directed toward co-workers or made in their presence can constitute unlawful harassment if it is facially abusive or persists where it is clearly unwelcome.2
Under federal law, employers can be held liable for harassment by coworkers if they unreasonably failed to prevent the harassment or knew or should have known about the harassment and failed to take prompt and appropriate corrective action. So, allowing an employee to continue making such offensive remarks is not required as a reasonable accommodation of that employee’s religion.3 Be mindful, however, that while this particular employee’s lecturing about “sinful” behavior may indeed meet that standard, this will almost always be a highly context-specific decision to make.
To determine whether allowing or continuing to permit an employee to pray, proselytize, or engage in other forms of religiously oriented expression in the workplace would pose an undue hardship, employers should consider the potential disruption, if any, posed by permitting the expression of religious belief. Relevant considerations may include the effect the religious expression has had, or can reasonably be expected to have, if permitted to continue, on coworkers, customers, or business operations.
Local anti-discrimination laws also play a role. You don’t mention where else you’re located, but your home base of New York City, for example, prohibits employment discrimination and discriminatory harassment or violence based on several protected categories, including an individual’s sexual orientation, gender expression, and even reproductive health choices. So, it is within your purview to stop this employee from making offensive remarks to her co-workers, even if she believes she is entitled to voice her religious convictions.
Anti-Discrimination and Harassment Training
Assuming you are providing a typical explanatory course on workplace discrimination and harassment laws, an employee need not be excused based on religious objections to the content. I assume the presentation does not instruct employees to value one sexual orientation over another or encourage employees to affirmatively support or agree with homosexuality, but rather that it explains anti-discrimination and anti-harassment laws—what is and is not permitted in the workplace. Indeed, the EEOC has opined that an employer needs to make sure that its employees know about such laws and how to comply with them and related workplace rules. In such a case, it would be an undue hardship for the Company to excuse the vocal employee from related training.4
What to Tell Your Employee?
Explain to her that the purpose of the training is to prevent discrimination and harassment against a variety of protected classes, all deserving of a workplace free of persecution or ill treatment based on their race, religion, gender, age, or other protected category.
Regarding problematic dissemination of religious materials and general proselytizing, focus on the workplace disruption caused by the employee’s actions, your company policies in general, and not the employee’s position on hot-button topics. Explain which company policies and practices she has violated, and the appropriate use of internal company communications. In other words, make it clear to the employee the “why” of your actions.
Ensure she knows that she has a right to her religious convictions, but not a right to harass her co-workers or avoid company compliance trainings. All employees must contribute to maintaining a professional atmosphere to further the company’s goals. Remember to inform the employee where she can find a copy of the Company’s Equal Employment Opportunity policies, and flag for the employee that she will not be treated any differently or retaliated against for bringing good-faith complaints to the Company’s attention. Additionally, work with the employee’s supervisors to ensure they are also aware of the Company’s anti-retaliation obligations.
Finally, invite the employee to participate in the Company’s DEI programming and highlight for the employee that the Company values all perspectives.
1 EEOC, Guidance Directive No. 915.063, Section 12: Religious Discrimination (Jan. 15, 2021), citing Peterson v. Hewlett-Packard Co., 358 F.3d 599, 607‑08 (9th Cir. 2004) (undue hardship for employer to accommodate employee’s religiously motivated posting of large signs in his cubicle which he “intended to be hurtful” and to demean and harass his coworkers); Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1021 (4th Cir. 1996) (undue hardship to accommodate “religious need” to send “personal, disturbing letters to [coworkers] accusing them of immorality”).
2 Id, section 6. Permitting Prayer, Proselytizing, and Other Forms of Religious Expression; (a) Effect on Workplace Rights of Coworkers.
3 Id., fn. 299: Faragher v. Boca Raton, 524 U.S. 775, 802-03 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759-60 (1998); see Peterson v. Hewlett-Packard Co., 358 F.3d 599, 607 (9th Cir. 2004) (“[A]n employer need not accommodate an employee’s religious beliefs if doing so would result in discrimination against his coworkers or deprive them of contractual or other statutory rights.”).
4 Note that if you have operations in Florida, it is important to keep the state’s Individual Freedom Act (IFA)—the so-called “Stop-WOKE” law—in mind when conducting any training, and in particular that involving DEI. Although this law, which effectively limits certain employment training discussions regarding diversity, non-discrimination and anti-harassment, was partially enjoined, the decision is subject to appeal. Moreover, a private cause of action remains, and similar laws could be enacted in other states, so employers should check with counsel before launching DEI trainings to determine the current state of the law in their jurisdictions. Relatedly, in Connecticut, a new law gives employees a right not to attend certain employer-sponsored meetings. Although the law is intended to discourage employer campaign meetings during union organizing drives, the language of the statute is extremely broad.