Does Your Religion Excuse Homophobic, Racist or Sexist Behavior At Work?

Duck Dynasty's Phil Robertson not protected by Title VII

A&E

When I wrote the piece about Duck Dynasty's Phil Robertson and his suspension for making racist and anti-gay comments in an interview done to promote his show, many readers told me that Mr. Robertson should be protected by religious discrimination laws. After all, the argument went, he was only expressing his religious beliefs about gays.

Bob
Tt is not freedom of speech, it is freedom of RELIGION--what Phil said was congruent with what the Bible says. Violation of the free exercise clause is the issue, not speech. Can you imagine firing an employee because they expressed atheist beliefs or supported Obama and his queer minionsjQuery19107382557191101273_1396556201934???

shell.holston
Well, Donna, perhaps you are an attorney, but I, for one legal, American, Patriotic viewer say he had every right to express his ''belief" which was from the HOLY BOOK OF LAWS, in his answers to a question ask. If the contracts you mentioned were from that same book we wouldn't be having this debate, but they are "made up laws" by mankind who are on the bottom of the universal spectrum, therefore the GOD OF THE PEOPLE, along with the people, and perhaps the money factor, trumped your argument. If A&E had the "right" to fire him they should have done so. This was being watched by several networks eager to pick the program up! So, A&E sold their soul for gold?
sgard206
Ms. Ballman is talking like a typical lawyer who has parsed out Mr. Robertson's comments without regard to the surrounding context. Like his comments or not, Mr. Robertson was speaking his personal/religious beliefs in direct answer to questions put forth by his interviewer. Ms. Ballman omitted his comment that he does NOT hate gays. . . . Personally, I'd rather work with someone who's views I know rather than the passive-aggressive bigots rampant in business.
Peggy
It's called freedom of speech. None of this should even be up for discussion. If you got your feelings hurt because the man quoted from the Bible then I suggest you get over it. No one is forcing people who lead an alternative life style to conform, and those who lead and / or support alternative life styles have no right to demand that religious conservatives sit down shut up. You have your rights, conservatives have theirs and every right in the world to express their religious beliefs without fear of retribution, just like every one else has.
aspenrj
so, I'm an employee somewhere and I'm interviewed by a magazine and specifically asked what I believe is a sin. I answer truthfully. I'm now a threat to create a hostile work environment? This is typical hypocritical bull crap. If someone at work then comes up to me and asks me what I think is a sin, I am not the one creating a hostile environment, especially since they know my views and are asking to create problems. Aren't there religious descrimination laws? If someone believes and says it is a sin for me to think or say a certain lifestyle is a sin, how is it they are now the authority on morality and not me. Pure hypocricy.
RockingR
hmmm...unless Mr Robertson signed away his rights about voicing his religious views then there are FEDERAL laws protecting employees against employers discrimatory practice against one's religion. Sorry but A&E would have been totally out of luck in a lawsuit if Mr Robertson decided to pursue that path...
Annette Greco
It's illegal to discriminate against someone based on his/her religious beliefs. He was answering a question about his religious beliefs about sin. He made no pretense he was talking about anything other than his personal and religious beliefs.


Okay, okay, I get it. His religious beliefs are that gays are an abomination. Some Biblical reasons were used to support slavery and racism, too. Can you share your theories about the "mark of Cain" being on black customers? What do you think would happen if you said this to, say, your black supervisor or co-workers: "[Slavery] was established by decree of Almighty God...it is sanctioned in the Bible, in both Testaments, from Genesis to Revelation...it has existed in all ages, has been found among the people of the highest civilization, and in nations of the highest proficiency in the arts." Do you think you'd still be employed? Fortunately for him, the person who said this was Jefferson Davis, who didn't lose his job as President of the Confederate States of America for saying it. (He did lose that job, thank goodness).

Do religious discrimination laws allow you to express your beliefs that "the gay lifestyle," and gay marriage are sinful? Are you allowed to tell your female coworkers that women belong in the home and should be subordinate to men? Can you dig out old Jeff Davis's views of the Bible to share with your African-American co-workers?

Here are the legal issues involved in determining how much religious expression at work is protected, and when it isn't:

Religious Accommodations: In general, religious beliefs at work should be accommodated unless it causes an undue hardship for the employer. If you can't work on the Sabbath, must cover your hair, or have clothing restrictions related to your religion, most employers will have to accommodate you. EEOC says this about what might be an undue hardship in this context:

An employer can also restrict expression that disrupts operations. In Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995), the court concluded that it would be an undue hardship for the employer to allow an employee to wear a graphic anti-abortion button where doing so disrupted the workplace. In Wilson, the court found that the employer had reasonably accommodated the employee by allowing her to wear the button in her cubicle, but requiring her to take it off or cover up the picture when she left her cubicle. Here, it is possible that a reasonable accommodation may be to permit the doctor to hang the poster in an area such as a personal workspace where it would not be visible to co-workers or to patients.

Employers also need not accommodate religious expression that is hostile or demeaning to patients or colleagues. In Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004), the court held that the employer could terminate an employee who refused to remove anti-gay scriptural passages that he had posted in his personal workspace, where they were visible to co-workers and demeaned homosexual employees.


Disruption: If you make statements at work, or outside of work in a public place like social media or a national magazine interview, and those statements cause a disruption at work, then the employer can refuse to accommodate you. Wearing a button about "Adam and Steve," hanging anti-abortion posters, and handing out flyers about a women's place being at home would likely cause a disruption. If you decided to express your views to customers, your employer's business will certainly be disrupted. While your employer can't fire you for holding those beliefs, it can fire you for expressing those beliefs in a way that disrupts the workplace.

Hostile or demeaning: Similarly, the employer must comply with laws about hostile environment at work. They can't allow you to harass or create a hostile environment for co-workers or customers based on race, sex or, in many states and localities, sexual orientation. Many employers not governed by sexual orientation discrimination laws still have policies requiring respectful treatment of co-workers. If you make working uncomfortable for your co-workers, your employer can fire you, despite your religious beliefs.

Can't force you to accept: On the other hand, companies can't force you to sign a policy that says, for instance, that you must value homosexual co-workers. You may have to respect them, but your employer must also accommodate your beliefs. Here's what EEOC says about this fine line:

Many employers have policies that require employees to treat each other with "courtesy, dignity and respect." This terminology fits within the ambit of "professionally" as used in the example. See also Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004) (it would have constituted undue hardship for employer to accommodate employee by eliminating portions of its diversity program to which employee raised religious objections; to do so would have "infringed upon the company's right to promote diversity and encourage tolerance and good will among its workforce"). If training conflicts with an employee's religious beliefs, the content of the training materials may be determinative in deciding whether it would pose an undue hardship to accommodate an employee by excusing him from the training or a portion thereof. If the training required or encouraged employees to value certain lifestyles or dimensions of diversity, it might be more difficult for an employer to establish that it would pose an undue hardship to accommodate an employee who objects to participating on religious grounds. Buonanno v. AT&T Broadband, LLC, 313 F. Supp. 2d 1069 (D. Colo. 2004) (company can require and instruct employees to treat co-workers with respect in accordance with corporate diversity policy, but violation of Title VII occurred where company did not accommodate employee's refusal on religious grounds to sign diversity policy asking him to "value" homosexual co-workers, which he reasonably believed required him to subscribe to a certain belief system rather than simply agree to treat his co-workers appropriately).

Can't refuse training: Even if the company policy against discrimination includes gays, you can't refuse to be trained on it. EEOC gives this example:

Employer XYZ holds an annual training for employees on a variety of personnel matters, including compliance with EEO laws and also XYZ's own internal anti-discrimination policy, which includes a prohibition on sexual orientation discrimination. Lucille asks to be excused from the portion of the training on sexual orientation discrimination because she believes that it "promotes the acceptance of homosexuality," which she sincerely believes is immoral and sinful based on her religion. The training does not tell employees to value different sexual orientations but simply discusses and reinforces the employer's conduct rule requiring employees not to discriminate against or harass other employees and to treat one another professionally. Because an employer needs to make sure that its employees know about and comply with such employer workplace rules, it would be an undue hardship for XYZ to excuse Lucille from the training.

Employee versus contractor: Title VII, the law protecting employees against many types of discrimination, including religious discrimination, excludes contractors from protection. Because Mr. Robertson has his own business, it's unlikely he is an employee. He may have zero legal protection from religious discrimination on Duck Dynasty.

Employment contract: Many of you had questions about what might or might not be in Mr. Robertson's contract and how it would affect his right to express his religious views:

mister.jake
Donna Ballman, Your state above "Contract: Mr.Robertson has a contract. It probably says" The word "PROBABLY" PUT A FLAG IN MY MIND, that you probably don't have any idea what's in Mr. Robertson's contract, OR are you just trying to get people to read your books??????????


You're right, mister.jake, I have no idea what's in his actual contract. I doubt he'd share it with me. I can only speculate and discuss what might be in it. But thanks for mentioning my book!

GraemeCree
Ms. Ballman's article is good general purpose advice for the average person. But I wonder how much it applies to reality shows. The whole purpose of a reality show is to show people being themselves. Of course, we all know it doesn't quite work like that, and that a lot of reality shows are as real as pro wrestling, but still, that's supposed to be the idea. So, I'd suspect that their contracts are a little different than the average person's, and not written in such a way as to discourage them from being "real". Or, maybe not. Still, I don't think she focused enough on the specific question of reality stars' contracts may differ.
frisco9312
no one here knows how his contract reads, i imagine a&e lawyers are aware since they wrote it, if he made his mark on the contract then he is bound by it.
rafazio1968
Ms. Ballman, like all media gurus I think you are leaving out some of the most IMPORTANT pieces of the actual article. Just because you have a contract with a company does not negate your legal or constitutional rights. He has an opinion/ belief based on his religious ideology and expressed them. Does that make a person? Does that affect his work?
Rick Bauer
What makes you think Phil and his family gave up their right of free speech? Phil and his family are highly educated businessmen who had been speaking on these very subjects for years...do you think they were so stupid as to sign a contract to alter their lives work for a "reality" show? Really? Do you have reason to believe their lawyers hadn't protected them and their way of life from those intrusions or controls?
bonne
I would really love to see what the contract says about being interviewed by media? All this man was doing was stating what his beliefs were according to the question that was asked. He is a religious man and his beliefs shouldn't be questioned, just like people who believe differently than him shouldn't have to explain their beliefs. I think that if more people where less politically correct we would be better off.

Just speculating, so don't raunch on me about guessing, but I would suspect he does have some protection built into his reality show contract allowing and even encouraging him to be a bit outrageous and express his religious views. Whether that extends to a specific agreement that he will be accommodated and allowed to demean specific groups of people is a good question I have no answer to.

However, even if he did have a contract allowing him to express these views, A&E can't make its employees agree to be discriminated against or to work in a hostile environment. While Mr. Robertson probably isn't protected by Title VII, the cameraman likely is a protected employee. I'm not saying it's going to happen, but if an employee on the set complained that Mr. Robertson was creating a hostile environment based on their race, sex or sexual orientation, A&E could be liable if they didn't stop it.

In sum, you have the right to hold religious views that include demeaning beliefs about your co-workers and customers. What you don't have the right to do is disrupt the business or create a hostile environment for your co-workers based on their race, age, sex, national origin, color, genetic information, religion (which includes atheism and religions other than yours), and in many states, sexual orientation. Yes, it's a fine line.

Which is why, as an employment attorney who represents employees, not employers, I suggest you express your beliefs only at church, among friends or with family in private, and zip it when it comes to your social media and work.



If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs.

Please note: Anything you write to me may be featured in one of my columns. I won't be able to respond individually to questions.

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Tov

It is amazing to hear so many people align homosexuality with a race. It's just as erroneous as the neologism, "homophobia" -- as if there is no need for concern by the feminization of a community of males.
It's dishonest; and it's a defense mechanism that has gained ground. Many descendants of the African in America have been truly offended at the comparison. Their suffering has been unique, extensive, and beyond the pale of a civilization.
People who have justified slavery by the Bible are abysmally ignorant in their inability to properly exegete Scripture. Just because God tolerated slavery ( as He does numerous things that burn His nostrils) does not in any way indicate He approved of it -- just as He has not approved of man's insidious self will, such as in 1 Samuel chapter 8. Mankind is experiencing what life is like by way of his own devices; but that will change soon; then all these personal opinions will forever cease.

April 26 2014 at 9:09 PM Report abuse rate up rate down Reply
Philip Miles

Thanks Donna. Interesting 7th Cir. case on point, in which Plaintiff claimed she faced religious discrimination when she was terminated for the following:

"In her statement, Amy reported that [Plaintiff] was 'screaming over her' that God does not accept gays, they should not 'be on earth,' and they will 'go to hell' because they are not 'right in the head.' Five other employees confirmed that Matthews had said that gays are sinners and are going to hell.

Matthews v. Wal-Mart Stores, Inc., 417 F. App'x 552, 553 (7th Cir. 2011)(affirming summary judgment for Wal-Mart, which terminated Plaintiff for the harassment):

"Wal–Mart fired her because she violated company policy when she harassed a coworker, not because of her beliefs, and employers need not relieve workers from complying with neutral workplace rules as a religious accommodation if it would create an undue hardship. In this case, such an accommodation could place Wal–Mart on the 'razor's edge' of liability by exposing it to claims of permitting workplace harassment."

January 17 2014 at 3:57 PM Report abuse rate up rate down Reply
1 reply to Philip Miles's comment
EmployeeAtty

Great case! Thanks for sharing it.

January 17 2014 at 5:53 PM Report abuse rate up rate down Reply
Adam Kielich

You are getting such great content out of this issue.

Aside from the hilarity of the responses you are getting I suppose it is disappointing that after fifty years of anti-discrimination laws we have done such a poor job as a society of educating ourselves about the few rights we have in the workplace to be treated decently.

January 16 2014 at 12:52 PM Report abuse rate up rate down Reply
1 reply to Adam Kielich's comment
EmployeeAtty

I'm glad you enjoyed the responses as much as I did. The lack of understanding of employee rights is definitely frustrating. That's why I write this column (and why I wrote my book).

January 16 2014 at 3:32 PM Report abuse rate up rate down Reply
Jim Horn

No employer should tolerate homophobic behavior. but neither should the employer tolerate overtly gay behavior.

No employer should tolerate sexist behavior. Neither should an employer tolerate overtly sexy behavior or posturing.

No employer should be forced to accept religiously intolerant behavior. go to amazon.com and lood for religion, workplace, horn to learn more about religious abuses in the workplace.

January 15 2014 at 12:16 AM Report abuse rate up rate down Reply
2 replies to Jim Horn's comment
EmployeeAtty

I'm not sure what you mean by "overtly gay behavior." It almost sounds like you are espousing a "don't ask/don't tell" policy for work, which is not the law.

January 15 2014 at 8:59 PM Report abuse rate up rate down Reply
Adam Kielich

Nice spam in that last paragraph.

I read that first sentence to either mean you think being openly gay equally as bad as treating gay coworkers with disrespect as people or you think gays, and only gays, cannot help themselves from engaging in sexual acts in the workplace. Either way, you win a WTF on that comment.

January 16 2014 at 12:54 PM Report abuse rate up rate down Reply

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