Balancing Freedoms in the Workplace
A recent lawsuit filed in Michigan raises questions about how an employer can balance employees' religious freedoms with employees' sexual orientations.
By William Atkinson
Former Ford Motor Co. engineer Thomas Banks said in a federal lawsuit filed in early July that the automaker and an employment services firm both violated his religious freedom when they fired him for posting an anti-gay comment on Ford's website.
Banks, who describes himself as a Christian, worked at Ford for three years on assignment from Rapid Global Business Solutions, an employment service firm.
In July 2014, in response to a Ford intranet article celebrating the 20th anniversary of a group fostering an inclusive workplace for gay, lesbian, bisexual and transgender employees, Banks posted a comment saying, among other things, that Ford has no place promoting sodomy and immoral sexual conduct. Banks also claimed that the article was an assault on his religious beliefs.
He was fired two weeks later by supervisors from Ford and Rapid Global Business Solutions, who stated that his comments violated Ford's anti-harassment policy. According to Banks' lawsuit, the companies "acted intentionally out of malice or reckless disregard for Banks' federally protected rights."
In January 2015, the Liberty Institute, which defines itself as "the largest legal organization dedicated solely to defending and restoring religious liberty in America," filed a complaint with the Equal Employment Opportunity Commission on behalf of Banks.
In explaining the filing of the complaint, Hiram Sasser, chief counsel for Liberty Institute, stated, "We are shocked that Ford Motor Company would terminate one of their employees simply because he expressed his faith. If Ford is allowed to get away with firing Mr. Banks over this comment, we fear that every person of faith will be punished for talking about his or her faith in the workplace." Sasser added, "It's not just a case of Ford discriminating against people of faith. They broke multiple federal laws, from the Federal Civil Rights Act of 1964 to the Civil Rights Act of 1991, and they must be held accountable."
However, in April 2015, the EEOC stated that it had made the decision not to pursue the case.
In his recent lawsuit, Banks seeks an unspecified amount for damages for loss of wages, mental anguish, emotional distress, humiliation, shame and anxiety.
Does this case have implications for employers beyond those who are involved in this specific case itself?
Many legal experts would say yes.
"I think there will be a run of lawsuits which will claim that the application of the right of a homosexual couple to marry is an unconstitutional infringement on a person's or business owner's religious freedom," says Emilee Boyle Gehling, an attorney with Goosmann Law Firm in Sioux City, Iowa.
"This line of reasoning is similar in a sense to that used in the Hobby Lobby case. In that case, the Supreme Court found that the application of certain parts of the Affordable Care Act, such as the birth control requirements, were an unconstitutional infringement on Hobby Lobby's religious freedom."
"Over the past decade, there has been a significant uptick in employment religious discrimination cases, and we expect the trend to continue," says Sasser. "As employers seek to promote certain social issues, that promotion can lead to increased conversation among a religiously diverse workforce, and many faiths, especially Islam, Judaism and Christianity, may compel adherents to those faiths to offer diverse views on social issues," says Sasser. In other words, according to Sasser, employers are creating dialogue through their policies that otherwise may not occur.
Aaron R. Gelb, a shareholder with Vedder Price in Chicago, sees a number of possibilities playing out. "I would not be surprised to see a brief spike in claims brought by employees claiming to have been discriminated against for conduct similar to what Mr. Banks got fired for, but I do not believe it will be a long-lasting trend," he says. "While we may well see similar spikes whenever there is a significant court decision or law passed that results in media focus on a controversial topic, the rapidly changing news cycle will soon divert the attention of most people to another issue."
With that said, though, Gelb says he doesn't believe the issue in general will go away any time soon, as there are people on both sides of the issue to whom it is very important.
"I don't think, however, that many people will risk saying or doing something so inflammatory that they risk losing their jobs," he says. "At the same time, I suspect most employers will respond to such incidents in a measured way, in an effort to avoid legal action and the attendant media scrutiny."
In light of the Banks case, Sasser believes that employers should be careful to review calls for the company to participate in "social issues of the day," to ensure that the company is ready to handle the conversations that such issues may create within the workplace. "Second, employers should train supervisors about Title VII and its implications for people of all faiths, in order to ensure that supervisors treat with care the intersection of social issues the company is promoting and religious objections," he says. "Employers should acknowledge that religious liberty is protected, and that conversations and issue resolution techniques are far superior to taking punitive action against a religiously-motivated employee."
According to Katharine Parker, a New York-based partner at Proskauer Rose, HR executives should ensure they are familiar not just with Title VII, but EEOC guidance on reasonable accommodation of religion, such as the recent U.S. Supreme Court decision EEOC v. Abercrombie & Fitch, which involved employer obligation to modify dress and grooming codes as a reasonable accommodation (unless doing so would be an undue hardship), and state and local laws that may impose broader obligations on employers.
"Even more importantly," she says, "HR executives should provide training to managers to ensure they are aware of the company's legal obligations to reasonably accommodate."
According to Gehling, the EEOC just recently issued a ruling finding that discrimination based on sexual orientation violates the Civil Rights Act of 1964. "An HR executive must apply company policies prohibiting harassment and discrimination, whether that be discrimination against someone because of their gender or religion, and following the EEOC ruling, their sexual orientation." In prior years, according to Gehling, a person's sexual orientation was not protected from workplace discrimination under applicable state law in many states. However, this area continues to develop and, as the EEOC ruling shows, it is likely that sexual orientation will be consistently recognized as a protected class throughout the United States in short order.
"First and foremost, I encourage employers to be proactive and ensure that they have taken steps to avoid such problems before they occur," says Gelb. "Having a well-drafted social media/electronic communications policy that defines what sort of conduct is acceptable and unacceptable is a good start." Likewise, he continues, having an EEO or other policy that affirms the company's willingness to accommodate religious beliefs is also a good idea.
"Training those managers who make decisions on EEO compliance is also important," he says. "Obviously, there will be situations where the employer may find itself having to balance potentially conflicting beliefs or opinions, such as we see in the Banks case."
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