It’s no secret by now that Kim Davis, the Rowan County, Kentucky Clerk has become well-known for refusing to issue marriage licenses pursuant to a federal court order. Belonging to the apostolic Christian faith, Ms. Davis claims that her faith forbids her from issuing a same-sex marriage license. While the discussion has centered around the duties of a public official and the constitutional rights of private citizens, it is easy to see how the Kim Davises of this country impact the delicate balance between individual religious rights, the needs of an employer, and the rights of other employees in the workplace.
Some What-If-Kim-Davis-Were-a-Private-Sector-Employee Hypotheticals
Imagine for the sake of hypothesis that Kim Davis were a senior level manager in a private company with at least 15 employees that contracted with the county government to provide its marriage license and other services typically provided by a county clerk’s office. What might have happened to Kim Davis? What might have the deputy clerks in her office have done under various scenarios? Let’s first turn to Title VII of the Civil Rights Act of 1964 for some guidance.
Title VII defines “religion” for purposes of that statute as:
“…all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”
The EEOC takes the position that “[a]n accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of…burdensome work.”
In other words, where it’s reasonable to do so, employers must provide religious accommodations to their employees. That means that if an employer can permit or provide something that is not too costly or does not significantly interfere with its business, it must do so.
Turning back to Kim Davis, in our hypothetical, she appears to have requested a religious accommodation by protesting having to sign and issue marriage licenses to same-sex couples. Let’s say that the essential duties of Ms. Davis’ job include issuing marriage licenses under the authority vested in her and according to the law. Because her job and the law require that clerks issue marriage licenses to same-sex couples who request them, there is no accommodation that would permit Ms. Davis to both exercise her religious belief and perform the essential function of issuing licenses that would not substantially interfere with the operations of the business. As such, if Ms. Davis continued to refuse to perform that essential function of her job on religious grounds, the company would be able to lawfully terminate her employment.
But what if the essential function of her job was either to issue the licenses herself or to grant the authority to her deputies to sign and issue the licenses? Under those circumstances, as long as she did not interfere with her deputy clerks issuing the licenses under the authority of her office, there might be an accommodation possible. As long as shifting that duty to her deputy clerks did not decrease the efficiency of operations or overly burden the employees in her office, the accommodation might not present an undue hardship for the employer.
What about her deputy clerks? We can imagine two different but plausible scenarios –
First, the deputy clerks all hold the exact same religious views as Ms. Davis regarding same-sex marriage and they all refuse to issue licenses to same-sex couples. In addition to firing Ms. Davis, the company fires all of the deputies. It is unlikely under that scenario, where there would be no employees available to perform the company’s work of issuing marriage licenses pursuant to the law, that Ms. Davis or her deputies would have viable failure to accommodate claims under Title VII. Their requested accommodation would place an enormous burden on the shoulders of the Company, resulting in the government cancelling its contract with the company because of its inability to provide the service contracted for.
Second, Ms. Davis has asserted that the deputies do not carry the authority to issue valid marriage licenses. Until she went to jail for contempt, she had ordered them not to issue marriage licenses, an edict based upon her personal religious beliefs. Let’s say that a few of the deputy clerks issued licenses to a few same-sex couples while Ms. Davis was out on a lunch break, and when she returned, she discovered that fact and fired them for insubordination. The deputy clerks might have a Title VII claim against the company for religious discrimination and, in some states, wrongful discharge.
While Title VII protects the religious from discrimination and requires reasonable accommodation of religious practice, it also protects the non-religious from the unfair imposition of religion in the workplace and discrimination based on non-conformity with an employer’s religious expectations. In this second scenario, Ms. Davis fired the deputy clerks for disobeying her order, which was based upon her personal religious beliefs and was contrary to the deputies’ belief that they had the legal authority to issue licenses to same-sex couples. To add another layer of complexity, imagine that the deputy clerks also told Ms. Davis prior to their termination that their religious faith compels them to issue same-sex marriage licenses.
If this particular company were located in North Carolina, the deputy clerks might also have a claim for wrongful discharge under state law. They were terminated because they complied with a federal court order; such a termination violates the public policy of North Carolina that employees should obey the law, including the orders of a federal judge.
Attempting to balance the religious rights and other civil rights of persons in the workplace can present real challenges. While employers should take every measure within reason to accommodate religious practice in the workplace, they are not required to do so when such accommodation would be made at the great expense of the company or others’ rights. Still, employers must take requests for accommodations seriously and never base an adverse decision on bare assumptions about a person’s religious affiliation.