The “Kim Davis Issue”

 Michael G. Trachtman
Powell Trachtman Logan Carrle & Lombardo, P.C.
MEA General Counsel
mtrachtman@powelltrachtman.com

What do you do if an employee refuses to perform certain job duties – job duties that are fundamental aspects of the employee’s responsibilities – based on a religious belief?
Unless you are just returning from an extensive trip overseas (and maybe not even then), you know that Kim Davis is the Kentucky County Clerk who refused to issue marriage certificates – a fundamental aspect of her job — to same-sex couples on the basis of her religious beliefs.  Ms. Davis is an elected official who cannot be fired by her supervisors and, for that reason, her situation is not analogous to private workplaces, but it highlights this complex and thorny issue, which arises more than you might expect.  There have been cases involving nurses who have religious objections to being even tangentially involved in abortions, a vegetarian (based on religion) bus driver who refused to hand out promotional hamburger coupons, an IRS employee who, on religious bases, refused to work on tax exemption applications for organizations promoting abortion, homosexuality, legalization of marijuana and other causes to which he objected, restaurant staff members who claimed that serving alcohol would violate their religion,  workers who refused to work on certain days because of religious reasons… and so on.  And the publicity afforded to Ms. Davis’s religious stand will likely inspire other workers to follow in her footsteps.
So what do you do?
The law requires employers to offer a “reasonable accommodation” to employees who object to performing certain duties based upon their religious beliefs.  The obvious question is, how far does an employer have to go in order for its accommodation to be “reasonable”?  The problem is, as you probably guessed, that there is no clear answer.
For a substantial number of years, the established law has been that if the reasonable accommodation would cause the employer to endure anything more than a modest cost or inconvenience, the employer could draw the line.  Distinguish the ADA context, in which employers are required to go much further to accommodate employees with disabilities – an employer has to accommodate a disabled employee up to the point of the employer’s “undue hardship,” a significantly higher burden.
Recently, however, and inexplicably, the EEOC has opined that, despite this established law, employers facing religion-based objections to work duties must offer “reasonable accommodations” that are akin to those required by the ADA.  This will inevitably set up the kind of court confrontation that the EEOC seems to relish – the EEOC will bring charges against an employer who respects the established law but fails to meet the EEOC’s “undue hardship” standard; the employer will appeal; and a court will decide the issue.  Over the last several years, the EEOC has won some, and lost some.
For so long as the law remains in flux, my recommendation is to look at these situations from a practical perspective before you look at them from a legal perspective.  For example, often, an employer can eliminate the issue by swapping duties among employees:  remove the objectionable task from employee A; transfer it to employee B; and transfer one of employee B’s non-objectionable tasks to employee A.  Even if there will be some inconvenience and inefficiency, dealing with an EEOC charge will be worse.
If, however, there is no apparent, tolerable work-around, you will need to consult with counsel to get a better read on where the lines will be drawn, particularly in view of the EEOC’s recent pronouncements.  There are many situations where employers win these battles – it’s not all bad news.
One other point is worth noting – these principles do not apply to employees who object to certain job tasks based on their political or moral beliefs.  For example, recently, as a protest, employees in a fast food restaurant refused to serve police after reports of a neighborhood shooting.  The employer had the right to fire those employees — under the Constitution, religious beliefs enjoy fundamental protections that do not apply to other types of beliefs.  Similarly, there is no right of “free speech” in the workplace.  The Constitution says that speech cannot be abridged by the government — private employers have the right to regulate speech in the workplace to the extent that doing so does not compromise other legally protected interests (another topic for another day).
The upshot is that Republican workers are required to work alongside Democrat workers, Arab employees have no right to refuse meetings with Israeli employees, and, even, Eagles fans must serve patrons who are Cowboys fans.  But even Ebeneezer Scrooge would have a hard time making Bob Cratchett work on Christmas day.
Before too long, it would not be surprising if the Supreme Court tackled this issue and established some reliable benchmarks so that employers might better understand their legal responsibilities, but until then, the law surrounding religion in the workplace remains uncertain and inconsistent.  Let us know if we can help.
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Michael G. Trachtman is MEA’s general counsel and the President of Powell Trachtman Logan Carrle & Lombardo P.C., a 30+ attorney King of Prussia-based law firm that has represented businesses and business people for over twenty-five years.  He can be contacted at mtrachtman@powelltrachtman.com .  See www.powelltrachtman.com  for more information.