Recruiter's Lawsuit Challenges Diversity Program on Religious Grounds

​A large multinational foodservice company is facing a federal lawsuit after firing a California recruiter who refused to administer the company's diversity program for religious reasons.

On July 24, Courtney Rogers sued Compass Group USA in the U.S. District Court for the Southern District of California, alleging wrongful termination, religious discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. The company fired Rogers after she requested a religious accommodation to avoid managing a diversity program available only to women and people of color.

Compass is a Charlotte, N.C.-based foodservice firm with more than 400,000 workers across the world. It did not respond to a request for comment.

Background

Rogers was a recruiter in Compass' HR department, working from home in San Diego. In March 2022, Compass began to design and implement a diversity program that offered training, mentorship and the promise of a guaranteed promotion at the completion of the program. Employees could be nominated for the program by their supervisors, but white men were not eligible to participate. Citing her Christian beliefs, Rogers requested not to work on this program and to take up other job duties instead.

"She has a moral objection to treating human beings differently based on their race or sex," said Robert Weisenburger, an attorney with LiMandri & Jonna in San Diego, who is representing the plaintiff on behalf of the Thomas More Society, a conservative legal nonprofit focused on religious liberty. "She has a belief that all men and women are created equal in the eyes of God."

Rogers' supervisor did not engage in an interactive process regarding her request for a religious accommodation, and he fired her on Nov. 2, 2022, citing a failure to perform job duties, according to court documents.

The plaintiff filed two complaints with the U.S. Equal Employment Opportunity Commission, claiming religious discrimination and retaliation. She also filed an administrative complaint with the California Civil Rights Department, alleging religious discrimination and retaliation in violation of state anti-discrimination laws.

"Supervisors told her things like the program is about righting the wrongs of the past 100 years," Weisenburger said. "They were out to discriminate against white males."

The case appears to be unique in challenging a corporate diversity, equity and inclusion (DE&I) program on religious grounds. "I haven't heard of [another case] like this yet," Weisenburger said. "It's a newer case. It may be the tip of the iceberg."

Another legal expert agreed.

"I think we're going to see more of these cases. Lots of advocacy groups are looking for people to bring these cases," said Joe Schmitt, an attorney with Nilan Johnson Lewis in Minneapolis. "This is a fast-developing area. It's just going to keep snowballing."

Disagreement over Diversity Initiatives

Corporate DE&I programs have come under fire recently from conservatives who say they put white men at a disadvantage.

Republican attorneys general from 13 states recently sent a letter to business leaders, challenging diversity programs and warning companies to end racial preferences in hiring and promotions. The letter said companies will face "serious legal consequences" if they continue hiring practices that take race into consideration. It came just weeks after a Supreme Court decision ended affirmative action in college admissions.

However, the Democratic Attorneys General Association emphasized that corporate diversity programs are legal. "Many business leaders have for decades been rightfully committed to supporting all of their employees and enriching their businesses as a result," the group said in a statement in response to the Republican attorneys general.

Schmitt noted that having a DE&I initiative can help employers' recruiting and retention efforts. In addition, "there's a lot of data that suggests alternate viewpoints and different perspectives make a workplace more effective, enhance morale, and increase productivity and innovation," he said.

Companies can make their DE&I programs less risky for legal purposes, Schmitt said. He recommended not having quotas or hiring goals based on race or sex, as well as not tying hiring managers' compensation to meeting goals based on race or sex. He said it's riskier to have a diversity program that excludes certain demographic groups if it leads to an employment outcome, such as a promotion or a raise, as Compass' program did.

"If you have any DE&I program, there are people who will sue you for that regardless," Schmitt said. "You're always at risk of getting that claim. You can't reduce the risk to zero, but you can reduce the risk materially."

DE&I programs "should be focused on recognizing and removing barriers to employment or advancement, as opposed to singling out employees based on a protected characteristic and only providing benefits to those individuals," said Meredith Gregston, an attorney with Hunton Andrews Kurth in Austin, Texas. "Compliant and successful DE&I programs include all employees and focus on remediation of employment or advancement barriers, recruitment strategies, and reviewing minimum qualifications to provide opportunities for individuals with alternative experiences."

Schmitt recommended that employers audit their DE&I programs, evaluate internal and external communications about them, and take any internal complaints seriously. Sometimes, hiring managers and recruiters misinterpret a DE&I program and think they can't hire a white man for a position, so it's important to ensure they fully understand what the program does, Schmitt explained.

Broader Standard for Religious Accommodations

Under federal law, employers must reasonably accommodate all aspects of an employee's religious observance or practice that can be done without creating an undue hardship for the business.

In June, the U.S. Supreme Court released an opinion that makes it harder for employers to deny employees' requests for religious accommodations. The case, Groff v. DeJoy, involved a former postal worker who sued the U.S. Postal Service for failing to accommodate his religious practice of not working on Sunday, which he observed as a Christian Sabbath. The Supreme Court ruled that employers can deny an employee's request for a religious accommodation under federal law only if they can prove it would result in substantially increased costs for them.

"You have to look at the specifics of the request and the context of the accommodation in that enterprise," said Steve Gutierrez, an attorney with Holland & Hart in Denver.

Rogers' case will test this new standard in court. Groff changed the undue burden standard for purposes of Title VII religious accommodation claims, Weisenburger said. "That standard will absolutely come into play."