According to the Wall Street Journal’s October 27, 2013 article (which you can find here) employment-related religious discrimination claims are on the rise. The EEOC received 3,811 religious discrimination complaints for fiscal 2012, and 4,151 complaints for fiscal year 2011. We are still in the middle of our quest to learn from Wal-mart and its lawsuits. Wal-Mart has had its share in this area too. To be fair though, Wal-Mart has not always come out the losing party. That does not mean that we cannot still learn from Wal-Mart, however. It just means that we get to see that Wal-Mart also has some positive examples to offer. Join The Emplawyerologist after the jump to learn more…
In 2011, in Matthews v. Wal-Mart Stores, Inc., No. 10-2242 , March 30, 2011, the Seventh Circuit Court of Appeals found Wal-Mart within its rights for firing an employee who made anti-gay remarks to another Wal-Mart employee. Tanishah Matthews, an Apostolic Christian, worked at Wal-Mart’s Joliet Illinois store, and made anti-gay comments to another homosexual employee. Wal-Mart conducted an investigation, which revealed that Ms. Matthews screamed at her co-worker that “G-d does not accept gays” , that they “should not be on earth”, and that they will “go to hell” because they are “not right in the head”. Five other employees confirmed hearing Ms. Matthews say that gays are “sinners” and are “going to hell”. Finding that Ms. Matthews had engaged in “serious harassment” in violation of its Discrimination and Harassment Prevention Policy, Wal-Mart fired Ms. Matthews. The policy prohibited employees from engaging in conduct that could reasonably be interpreted as harassment based on an individual’s status, such as sexual orientation, and provided for “coaching and/or other discipline up to and including termination” for those found to be in violation. Matthews sued Wal-Mart, arguing that firing her for stating her views on homosexuals, which she maintained was part of her Apostolic faith, was religious discrimination. Matthews also argued that since Wal-Mart knew she was an Apostolic Christian, and required her during the investigation to work with the employee about whom she made her comments, she was subjected to religious discrimination. The court didn’t buy it. Allowing employees to spout vitriolic hatred against homosexuals is not a reasonable accommodation. Score one for Wal-Mart here. Before we move on to another case, let’s look at what Wal-Mart did right here. Wal-Mart clearly had a policy in place. Perhaps even more important than that, Wal-Mart implemented and followed through on its policy. Wal-Mart investigated and it took prompt and appropriate action.
The Seventh circuit also found for Wal-Mart in an earlier case, Noesen v. Medical Staffing Network, et al No. 06-C-071-S (7th Circuit May 2, 2007). Neil Noesen, a pharmacist in Wal-Mart’s Onalaska, Wisconsin store, demanded that he be exempted from having any contact with customers looking to fill prescriptions for contraceptives based on his religious beliefs. Noesen sued Wal-Mart and the staffing agency that placed him there for refusing to accede to his demand. Additionally, Noesen sued the State of Wisconsin for restricting his pharmacy license for refusing to either fill or refer to another pharmacy any woman’s prescription for contraceptives. Initially, Noesen’s supervisor actually tried to accommodate him by exempting him from filling or taking orders for prescription contraceptives and from having to handle the contraceptives in any way. The problem: Noesen refused to even perform any general customer service functions that involved even brief contact with customers seeking contraception. Noesen would place calls from such customers on hold and without even alerting other pharmacy staff. Not only did the courts find that Wal-Mart did right, it may have done more than it had to do. Wal-Mart actually tried to accommodate Noesen’s beliefs, at what would appear to have been great burden and cost to itself.
Here are some cases where Wal-Mart lost. In EEOC v Wal-Mart, Inc., WD Wash, No CV-10-0338-RMP Wal-Mart agreed to pay $70,000 to settle a claim by an assistant manager, a practicing Mormon who was subjected to threats of termination and discipline for not working on his Sabbath. For 14 years, Wal-Mart did accommodate his request, until it adopted a change in its scheduling system. The settlement also included training to HR personnel and other measures designed to prevent similar future occurrences. In an earlier case, Tincher v. Wal-Mart Stores, Inc. No. 96-2713. (7th Circuit June 20, 1997) the Seventh Circuit upheld the District Court verdict finding that Wal-Mart’s refusal to accommodate an employee’s refusal to work on her Sabbath and her resulting termination was religious discrimination in violation of Title VII of the Civil Rights Act of 1964. The Court also upheld the jury’s finding that Wal-Mart’s proffered non-discriminatory reason was pretextual. The only part of the jury verdict that did not survive was the award of punitive damages, because the court did not feel there was sufficient evidence that Wal-Mart acted in callous disregard for Ms. Tincher’s rights or that it intentionally violated federal law.
In late 2012, Anhue Doan, a pharmacist at one of Wal-Mart’s California stores was terminated, allegedly for praying with customers. While Ms. Doan did not deny having prayed with customers when requested to do so, she did dispute Wal-Mart’s allegations that it had caught her on video. In fact the video only showed Ms. Doan touching a crying customer’s hand. Ms. Doan claimed that her firing was retaliation for her blowing the whistle on employees that she believed were not following DEA requirements for controlled substances and other illegal activities. Ms. Doan sued for religious discrimination, retaliation for refusal to participate in illegal activities, and wrongful termination. It appears that case is still pending.
So, what has Wal-Mart taught us this week? When an employee indicates adherence to sincerely religious beliefs, and practices based on them, employers must make reasonable efforts to provide reasonable accommodations. On the other hand, you do not have to provide whatever accommodation your employee requests. The accommodation has to be reasonable. If no reasonable accommodation exists, i.e. if an accommodation imposes an undue hardship on the employer, then it need not provide the accommodation.
Join The Emplawyerologist next week to see what we can learn from Wal-Mart on race discrimination issues in the workplace.
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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