Not To Preach, But Religion In The Workplace Continues To Cause Disputes

| William A. Schreiner, Jr.

Ah, religion. 

Whatever good it may – or may not – do for humankind is a subject for theological, philosophical, or old-fashioned barroom debate, not for this blog.  Nor do we opine on the multiple varieties of religious faith.   

We do, however, have to come across religion quite often when we’re writing about disputes between employers and employees.  Religion in the workplace makes things hotter than last year itself.  That heat, of course, leads to disputes that often find their way into courtrooms. 

When we write about religion, we’re really writing about the tension the exercise of religious beliefs or practices can cause in hiring and in the workplace.  Two recent cases showcase this tension and how religious belief in one case, and the lack of it in another, led to disputes.  Taken together, and setting the merits of the individual cases aside, the cases suggest conduct that employees and employers may want to avoid if they want to avoid these sorts of problems. 

We start with a recent case from Chesapeake, Virginia, involving a Bible.  We don’t know which one of the many translations of the Bible it was.  What we do know is that Kenneth Biernot was a clerk in the city treasurer’s office who had a copy on his desk, in violation of the office’s prohibition on keeping any private reading materials on desks where members of the public worked with city employees.  In the complaint he filed in federal court, Biernot alleged he was asked to remove the Bible from his desk, and that when he refused, he was fired.  He alleged he was fired because he had “exercised his right of religious expression,” and sought damages for violation of his Constitutional rights and Virginia state law (curiously, he did not allege a violation of Title VII of the Civil Rights Act of 1964, which as discussed here  can apply to certain cases of religious discrimination. 

The Chesapeake city treasurer responded with several defenses, including evidence that Biernot was welcome to keep his Bible in his desk, or on the floor next to it, just not on the top of the desk.  Citing a Ninth Circuit Court of Appeals case, Berry v. Department of Social Services, the treasurer argued that this represented a perfectly legitimate balancing between Biernot’s First Amendement right to religious expression and the treasurer’s obligation under the same Amendment to not appear to be favoring one religion over another by allowing Bibles on desks.   The treasurer also raised other solid defenses – including that she is immune from suit under Virginia law. 

Faced with these hurdles, Biernot dismissed his own suit right after Christmas.  This doesn’t mean the issue of Bibles on desks goes away, though.  Biernot’s case reminds employers (who may not have the protection of immunity the Chesapeake treasurer had) of the need to have a sound policy on expression in the workplace that employees know and can understand.  This can help cut short disputes of this type down the road.  For employees of religious faith, on the other hand, the case may teach the value of modesty in promulgating one’s view of the road to eternity while you’re in the hallway leading to the coffee room. 

Our next case teaches two other points related to religious beliefs.  First, it’s generally illegal for to discriminate in employment based on religious views.  We’ve covered that here.  The second, and finer, point of Johnson v. Action Target for employers and managers is this: if your religious beliefs would lead you to discriminate on another basis – say, gender – don’t follow them in the workplace, or you’ll face double trouble: allegations of religious discrimination and the other basis.

Tara Johnson alleges that on her first day as a sales rep for the Utah-based company that makes gun range equipment, she was asked if she was a Mormon – and when she said she wasn’t, her boss gave her a lecture about why the company didn’t like employees that drank alcohol.  Her time at Action Target went from awkward to downright uncomfortable over the next few years.  She alleges the company’s CEO promoted her to a position out of Utah – but said Action Target would bring her back to Utah to raise a family when she got married becvause “that’s what she’s supposed to do.”  He also said, she claimed, that women shouldn’t get advanced educations.  Ultimately, Johnson was fired and replaced by a man that he company had previously fired, and she claims she wasn’t paid her full commission. 

The questions about her religion, combined with derogatory statements (and perhaps illegal conduct) based on her gender, give Johnson two bases for the lawsuit she’s filed against Action Target in federal court.  She alleges discrimination based on her religious belief – or at least her lack of subscribing to the tenets of the Mormon faith – and that the Mormon faith’s views on women led Action Target to discriminate against her based on her gender.

We’ve said it before and we’ll likely have occasion to say it again: while employees and managers are entitled to religious beliefs both in and out of the workplace, the two can be a volatile mix of trouble if brought together in the wrong way.