By Brian A. Wadsworth

On August 20, 2015, the U.S. Court of Appeals for the Fifth Circuit held that a plaintiff could not prevail on a Title VII religious discrimination claim where there was no evidence the employer knew that the reason that the plaintiff refused to complete a job duty, which led to the employee’s termination, was that she had a conflicting religious belief.

Plaintiff Kelsey Nobach (“Nobach”) worked for Defendant Woodland Village Nursing Center (“Woodland”) as a nursing home activities aide for thirteen months. In September 2009, Nobach was called in to work an unscheduled shift. Woodland asked Nobach to work in the facility’s main hall, where Nobach did not typically work. During the course of this shift, a non-supervisory nursing assistant with no responsibilities over Nobach informed her that a particular resident had requested that the Rosary be read to her. Nobach informed the nurse that she could not read the Rosary because it conflicted with her religious beliefs, though she did not expound on her religious views. Consequently, the Rosary was not read to the resident.

The resident complained to Woodland’s management the following day. Five days later, Woodland terminated Nobach “for failing to assist a resident with the Rosary, which was a regularly scheduled activity when requested by a resident.” After Woodland informed her of her termination, Nobach responded that she could not “pray the Rosary,” because it was “against [her] religion.” Woodland’s management responded that her religious beliefs were immaterial, and the failure to read the Rosary was “insubordination.” Only after the termination did Woodland learn that Nobach was a former Jehovah’s Witness who followed some of the faith’s tenets, one of which precluded Nobach’s reading of the Rosary.

Nobach sued Woodland in Mississippi district court and prevailed on a jury verdict. On appeal, the Fifth Circuit originally heard this case in August 2014 and held that Nobach failed to prove that Woodland knew that her refusal to participate in the Rosary rite was based on conflicting religious beliefs. The U.S. Supreme Court, however, took up the mantle and ordered the Fifth Circuit to review Nobach’s case in light of its decision in EEOC v. Abercrombie & Fitch Stores, Inc.

In Abercrombie, the Supreme Court held that an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. In other words, an employer who has any reason to believe, or even suspect, that accommodation may be necessary—from any source—will need to consider engaging in an interactive process with the applicant.

The Fifth Circuit revisited its original opinion on August 20, 2015. Having considered Abercrombie, the Fifth Circuit remained steadfast in its holding. The Fifth Circuit found there was no evidence that “Woodland knew, suspected, or reasonably should have known” of Nobach’s conflicting religious belief and that the conflicting belief was the reason for her refusal to engage in the Rosary rite. Given this paucity of evidence, the jury would not be entitled to reject Woodland’s explanation for Nobach’s termination. Indeed, the Court could not find evidence that “anyone involved in [Plaintiff’s] discharge suspected that Nobach’s refusal to pray the Rosary was motivated by a religious belief.” The Fifth Circuit reasoned these facts distinguished Nobach from Abercrombie because, unlike the plaintiff in Abercrombie (a Muslim who wore a traditional head scarf), there was no visible sign of Nobach’s religious beliefs; i.e. there was no indication Woodland knew of, or even suspected, the religious conflict.

Nobach is important for reinforcing that even post-Abercrombie, an employer cannot be held liable for discrimination against an employee based on her religion when it does not know or suspect, from any source, that the conflict exists. In Nobach, it was important that the non-managerial nursing assistant, who was privy to the plaintiff’s statement that the Rosary conflicted with her religion, had not shared that information with any supervisor who made the termination decision.

In addition, Nobach reinforces the principle that employers need to be careful about initiating discussion of religious beliefs, outside of the interactive process context.. Such discussions could provide a plaintiff with a platform to argue the employer knew or should have known about the employee’s conflicting religious beliefs.

If you have questions regarding this topic, please contact the author, or your Seyfarth attorney.