By: Rachael Jeanfreau and Kenneth J. Nilsson
Among the legal difficulties faced by employers, few are more challenging and personal than striking a balance between an inclusive workplace environment for some employees while respecting the religious beliefs of others. While religious beliefs and practices are generally protected by the Bill of Rights to the Constitution and Title VII of the Civil Rights Act, in 2020, the U.S. Supreme Court definitively ruled that Title VII of the Civil Rights Act also protects employees against discrimination based on sexual orientation and gender identity. Friction between these rights sometimes arises, leaving employers between a rock and a hard place.
Cases from many Federal courts across the country have tested the limits between LGBTQ+ protections and religious freedom, particularly in cases involving employees who were allegedly terminated because of their religious-based criticism of their employer’s stance on LGBTQ+ issues. For instance, a Federal appeals court recently reinstated a lawsuit from two Alaska Airlines flight attendants who were allegedly fired after expressing faith-based opposition to a pro-LGBTQ+ legislative bill on a company forum. The court ruled that a jury must determine whether the airline unlawfully terminated the employees because of their Christian beliefs or if the airline lawfully enforced its anti-harassment policies. In another recent case, the EEOC secured a $180,000 settlement from Kroger after the grocery chain fired two employees who refused to wear an apron embroidered with a multi-colored heart, stating that it violated their religious convictions.
To muddy the waters further, some courts have held that other employers acted properly when terminating the employment of employees who expressed their religious opposition to LGBTQ+ issues. For example, the court upheld a theater company’s dismissal of a lead actor, Seyi Omooba, whose past social media posts condemning homosexuality surfaced shortly after she was cast in an iconic gay role. The court ultimately concluded that the theater acted lawfully, as the termination was driven by the severe commercial threat to the theater company of the resulting public backlash rather than the actor’s religious beliefs.
Adding to the difficulty is the absence of a bright-line rule to easily resolve these tumultuous disputes. Rather, each scenario depends on the specific facts at issue. To minimize legal risks, employers must take proactive, good-faith measures to understand their employees’ perspectives. Companies should have legally-compliant anti-harassment policies, educate their workforce on acceptable employee conduct under the policies, and ensure that management and HR teams are trained to enforce rules neutrally, without personal bias. Additionally, some employers are reducing potential conflicts by scaling back public corporate activism and removing open internal messaging platforms that some employees use to debate religious and political issues. Since these disputes are highly fact-specific, employers should contact their labor and employment counsel for tailored guidance.
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