Over the last few years, conscientious refusals in the workplace have constantly been in the news: from Hobby Lobby, to Indiana’s Religious Freedom Restoration Act, to health care providers and abortion, to, most recently, Kim Davis and other county clerks’ refusals to issue marriage licenses to same-sex couples. Employers in all types of workplaces are being confronted with questions about when religious accommodation for conscientious refusals begins to interfere with employees’ essential job responsibilities.
Employers need to be aware of this ongoing issue in order to effectively manage conscientious refusals in their own workplaces. The following are four essential tips to help employers when it comes to conscientious refusals in the workplace:
1) There are differences between refusing to provide a service at all, and refusing to provide a service only to some people. Healthcare providers, for example, usually have the right to refuse to provide abortions based on their religious beliefs. However, healthcare providers cannot refuse—for religious or other reasons—to treat a patient because of his or her race, gender or other legally protected category. The first action is a conscientious refusal; the second is discrimination.
When the group of people being denied the service is comprised of individuals in the LGBT community, the issue is more complicated, because there is no federal law barring discrimination based on sexual orientation or gender identity (although some federal courts have interpreted the statute prohibiting sex discrimination effectively to include discrimination based on sexual orientation and gender identity), and only 19 states and the District of Columbia have such laws. In some states, refusing to provide services to LGBT individuals (such as marriage licenses or in-vitro fertilization) might be legal. However, it is still discriminatory and should be evaluated differently from refusals to provide a service to anyone, regardless of sexual orientation or identity.
2) Employees may have the right to step away from providing a service, but they do not have the right to step between a client and that service. Clients, customers, patients and other constituents have the right to obtain legal products and services—whether that involves a same-sex couple’s right to a marriage license or a woman’s access to emergency contraception.
As a result, employees’ right to conscientious refusal does not extend to preventing an individual from obtaining the requested service elsewhere. For example, a pharmacist may legally refuse to fill a prescription for contraception, provided the woman can get the prescription filled elsewhere in a convenient and timely manner. However, the pharmacist may not tear up the prescription, which would come between the woman and her right to contraception. Similarly, Kim Davis’s stricture against allowing her employees to issue marriage licenses to same-sex couples was more problematic than her own individual refusal to do so.
3) Accommodating an employee’s conscientious refusal may constitute an undue hardship. Sometimes, employers think that they must always accommodate employees’ religiously-motivated conscientious refusals, because failing to do so would constitute religious discrimination. In reality, there may be instances in which an employee’s religious belief or practice may not be able to be accommodated in the workplace because doing so would cause an undue hardship on the employer.
Undue hardship is very fact-specific and often has to do with whether the service the employee refuses to provide constitutes a large portion of the employee’s job responsibilities. A nurse has a greater right to refuse to assist with an abortion if asked one time under unusual circumstances than a nurse who works for a clinic that only or primarily provides abortion services.
Accommodating the first nurse will probably be easier, and require less hardship, than accommodating the second nurse. This principle is also why Kim Davis’s refusal to issue marriage licenses was problematic. Davis may have believed that her refusal was not discriminatory because she refused to issue marriage licenses to all couples, regardless of the sexual orientation. However, by doing this she was avoiding one of her central job responsibilities.
4) Employers should work with employees to create accommodations that protect an employee’s conscience, but still allow others to enjoy their legal rights. Not all conscientious refusals cause undue hardship to employers. Employers should work with their employees to make a good faith effort to accommodate religious beliefs and practices in the workplace.
Tanenbaum recommends that employers use the “Accommodation Mindset ©” and approach accommodations from the perspective of “how can I accommodate?” rather than deciding what beliefs and practices merit accommodation. Employers should also be creative in approaching possible accommodations, and work to create an environment where employees are comfortable voicing their needs for accommodation. Finally, employers should make sure that accommodations comply with all relevant laws and employer policies.