Last June, the U.S. Supreme Court determined that same-sex marriages are a fundamental liberty protected by the 14th Amendment of the U.S. Constitution – and that states must issue marriage licenses to same-sex couples.
Kim Davis, a county clerk in Kentucky disagreed, citing religious reasons for refusing to sign marriage licenses for gay couples. Davis even spent time in jail for her continual refusal to do so, which promptly led many to wonder, "Can Kim Davis be fired?"
The short answer is no. Davis was elected – she can either resign, be impeached, or finish her term. But if she were NOT a public official chosen via election, merely an at-will employee for a private company…could she be fired then? What if she worked to sell gowns in a bridal shop here in California?
The answer then becomes a little more complicated.
Federal Laws & Religious Discrimination
Many employers know that Title VII of the Civil Rights Act of 1964 prohibits religious discrimination in the workplace. But some employers will not know that the same federal law also prohibits job segregation – an employee like Davis refusing to perform duties because of religious beliefs might be protected from being forced to take another position, such as one with no customer contact, for instance.
Also, Title VII mandates accommodations when reasonable. Workers citing religious reasons for refusing to perform a task or conform to workplace rules (e.g. a bartender refusing to wear a revealing uniform, a healthcare worker refusing to be vaccinated, or a floral designer refusing to provide flowers for a same-sex wedding) may suggest or be offered workaround solutions.
If the requested accommodation does not result in undue hardships such as: additional excessive costs, safety concerns, decreased efficiency, or infringement on someone else's rights – the accommodation should be implemented by the employer.
State Protections for Employees
California's Fair Employment and Housing Act (FEHA) is similar to Title VII in principle – it also prohibits employers from discriminating against applicants and employees because of religious beliefs and requires reasonable accommodations to be made.
Under FEHA, an employer would have to show that there will be significant difficulty or expense should the employer make a religious accommodation.
Keep in mind, there may be reasons to terminate an employee, but employers should be sure those reasons are valid and not in violation of state or federal protections.
In Nava v. Safeway Inc., for example, employee Juan Nava was terminated for destruction of company property one week after he admitted to being offended by and subsequently removing, a gay pride poster from an employee break room. Nava sued for wrongful termination. Safeway responded with an anti-SLAPP motion moving to dismiss the case. Safeway argued that the lawsuit sought to censor and interfere with Safeway’s right to freedom of expression.
The trial court decided for Safeway, but a Fifth Appellate District Court reversed – finding that (although it was a close call and Safety might later prevail) Nava could also potentially prevail with his wrongful termination suit. Therefore, the Court allowed the lawsuit to proceed.
Employer Takeaway
So back to the question: What do you do with an employee like Kim Davis?
In California, you accommodate when you can because both state and federal laws protect the religious beliefs and practices of the employee. Absent undue hardship, you cannot take adverse action, like cutting back her hours or denying her training opportunities. Nor should you let other employees mock her for her beliefs or anything else.
Accommodations may cost you time or money. But in the long run, it will be less expensive than a discrimination suit.
