May 24, 2024

When Worlds Collide: Accommodating Religion, Gender Identity and Other Competing Interests

This issue is not new; it is more prevalent. I recall 20-ish years ago a small government contractor had a female employee who objected to being in the restroom with a trans woman. She explained that her faith did not permit her to expose her forearms to a male who was not her husband. If the trans woman was in the restroom, she could not properly wash her hands because she could not pull her sleeves up above her wrists.

Just last month, on May 24th, an employee filed a lawsuit alleging his employer failed to provide reasonable religious accommodation and unlawfully retaliated against him under Title VII of the Civil Rights Act of 1964, in addition to several state and constitutional claims against his California, public sector employer. This followed the employer’s denial of the employee’s request to be excused from raising the pride flag as instructed by his employer during the month of June, pride month.

Earlier this year, a private sector employer settled a religious discrimination lawsuit for $50,000 after it denied a candidate’s request for a religious exemption from its influenza vaccine requirement and withdrew its conditional offer of employment.

What’s an employer to do to balance these competing interests? On April 29th the U.S. EEOC published updated “Workplace Guidance on Harassment Prevention.”  The guidance includes a section, “Special considerations when balancing anti-harassment and accommodation obligations with respect to religious expression.” I find it does not provide any practical examples. It reads, in part, “while an employer may need to provide a religious accommodation that disrupts ‘[c]omplete harmony in the workplace,’ the employer should take corrective action to address religious expression that creates, or threatens to create, a hostile work environment, or otherwise would result in undue hardship.”

Take the example of an employee who wishes to be referred to by a pronoun that does not match the individual’s sex as assigned at birth. A coworker declines to do so because that would violate a tenet of that employee’s sincerely held religious belief. We cannot accommodate both requests so what is an employer to do? When we use a pronoun, it is when the person about whom we are speaking is not present. We can simply refer to the person as “they” or “them,” such as, “What do they want for lunch?” If that grates on your nerves because it is grammatically incorrect, simply refer to the person by their name, “What does Christine want for lunch?”  If you are present, it is a non-issue as I can simply ask, “What do you want for lunch?”

While the EEOC’s example above references the need to take corrective action when an employee’s religious expression may create a hostile work environment for coworkers, remember to consider the flip side of that. If an employee’s conduct may create a hostile work environment for a coworker based on that coworker’s sincerely held religious belief, that needs to be corrected as well.