By: Dawn Solowey and Lynn Kappelman

Most employers are aware of the need to consider accommodation of employees’ sincere religious beliefs that conflict with a workplace requirement.  We have previously published a Roadmap for handling such requests for religious accommodation. 

But what should the employer do when a supervisor’s religious beliefs impose the risks of lawsuits by other employees?  Case in point:  a federal district court decision issued November 4, 2013 in the case of Zsenyuk v. Kamps, Inc. held that an employee’s religious and gender discrimination claim could proceed to trial based in part on evidence of her supervisor’s religious comments and practices in the workplace.

What Happened in Zsenyuk v. Kamps?

In Zsenyuk, the female plaintiff was a salesperson in a small Michigan company called Kamps, Inc. that manufactures and recycles pallets and wooden boxes.  Mr. Kamps, the CEO of the company, was an active member of the Protestant Reformed Church and open about his religious beliefs.  For example, he referred to God and Jesus in writings in the workplace, and quoted Scripture and said prayers in meetings.  Mr. Kamps held traditional religious views regarding women in the workplace, including believing that a mother’s primary role should be caring for her husband and children at home.  The company handbook referred to Sunday as a “day of worship.”  Several employees agreed that Mr. Kamps preferred employees who shared his beliefs and attended his Church. 

The Company ultimately terminated the plaintiff, a Catholic mother of a small child, citing her poor sales numbers.  The plaintiff sued for religious and gender discrimination.  The Court held that her claims could survive summary judgment, citing disputes of fact about her qualifications for her position, and whether her termination was discriminatory.  As evidence of alleged religious discrimination, the court cited, for example, the fact that Mr. Kamps had told the plaintiff that he was not comfortable with her entertaining clients, especially if they were male, and had insinuated that he was siding with her colleague in a dispute over rights to an account because the colleague was a “church going man.” 

When Does An Employer Need to Be Concerned About a Supervisor’s Overt Religious Expression at Work?

To be clear, many types of religious expression by a supervisor at work are perfectly lawful, and may in fact be legally-required religious accommodations by an employer.  For example, a supervisory employee may wear a yarmulke or cross necklace, or engage in personal prayer, either without contravening any workplace policy at all, or as a result of a religious accommodation granted by the employer after having engaged in an interactive process with the employer. 

However, when a supervisor’s religious expression at work arguably begins to infringe on the rights of others, the employer must carefully consider the interests of each employee and the risks presented.

What Kinds of Workplace Religious Activity By A Supervisor Might Raise a Red Flag?

Some examples of practices, especially by a supervisor, that may be cause for concern in the workplace include:

• Religious expression that could be perceived as derogatory to members of a protected classification such as gender, religion or (in many jurisdictions) sexual orientation;
• Actual or perceived favoritism toward those who practice the same religion as the supervisor, or attend the supervisor’s same place of worship;
• Reliance on religious beliefs as a basis for business decisions;
• Any mention of religion in performance evaluations;
• Religious meetings, Bible study groups, or prayer groups held in the workplace;
• Prayer or devotionals during business meetings, such as “opening” or “closing” prayers;
• Religious statements in company handbooks, values statements, corporate logos or e-mail signatures.

What Kinds of Claims Could an Employer Face Based on a Supervisor’s Religious Expression at Work?

These practices may increase the risk of several different types of claims by employees.   

First, an employee could claim that religious expression at work, if sufficiently severe and pervasive, created a hostile environment to him or her as a member of a different religion.  The employee may claim an actual or implied pressure to participate in certain religious practices, against his own or her religious beliefs. 

Or the employee may claim a hostile environment to him or her based on other protected classifications.  For examples, religious beliefs expressed in the workplace about members of other religions, about gender, or about sexual orientation may give rise to a perception of a hostile environment. 

Second, an employee might claim disparate treatment as a result of religious expression at work.  An employee who suffers an alleged adverse action, such a termination or rejection for promotion, may bring a disparate treatment claim on the grounds that employees in a favored religious group were treated preferentially.  Or the employee may allege that the adverse action was taken based his or her protected classification (such as gender, religion, or orientation) and point to the religious beliefs expressed by a particular supervisor at work as evidence.

Similarly, an employee could claim constructive discharge on the theory that the religious environment made the work conditions intolerable, or retaliation, if an allegedly adverse action follows a complaint about workplace religiosity.

The employer must also be aware of the need to be consistent in handling religious accommodation for different religions.  For example, if a supervisor wants to use a conference room to hold a Bible study, employees of other religions may ask for a similar arrangement.  If the employer accommodates one but not the other, there may be a risk of a religious discrimination claim. 

So How Does an Employer Get the Right Balance Between Accommodating a Religious Employee’s Beliefs, While Minimizing Risks of Claims by Coworkers?

The key is to find the right balance between employees’ rights to religious accommodation for a sincere religious belief and the rights of all employees to work in an environment free from discrimination or retaliation.  Some of the questions that the employer should think through include:

• Has the supervisor asked for a religious accommodation?  Can the supervisor’s religious practice be accommodated in a way that eliminates or minimizes any impact on other employees?
• Do employees face actual or implied pressure to participate in the supervisor’s religious practice?
• Is religion actually impacting, or perceived to impact, business or staffing decisions?
• Is religious expression at work offensive to others based on any protected classification?
• What is the overall level of religious activity in the workplace?  To what extent is the activity taking place in the employer’s workplace, during work hours, or using company resources?

The analysis is heavily fact-specific and requires careful consideration, ideally with the assistance of counsel with experience in religious accommodation and discrimination claims.  With careful thought, the employer can derive a policy that appropriately balances the rights of all employees.