Religious and LGBT Rights: Find Solutions that Work for Everyone

Employers can and should accommodate lesbian, gay, bisexual and transgender (LGBT) workers in addition to religious individuals whose beliefs conflict with rights sought by the LGBT community, a management attorney recommends. For transgender people, these rights include using a restroom that aligns with an individual's gender identity, even if it doesn't match their gender at birth.

"We have a fairly divided country. Employees are talking about things they never talked about at work," said Kelly Dobbs Bunting, an attorney with Greenberg Traurig in Philadelphia. "They're talking about bathrooms a lot."

Employers often resolve contentious circumstances about the use of bathrooms on a case-by-case basis, she said at the Society for Human Resource Management Employment Law & Legislative Conference on March 13.

Take an employer who has a Muslim female employee who prays five times a day and needs to do her ablutions before she prays. She cannot take off her hijab—a veil—in a restroom that has a transitioning woman in it, a member of the audience said, asking what the employer should do.

To the extent that it's possible, an employer has to try to accommodate both individuals, Bunting said. One possibility, if there's room and it's affordable, is individual restrooms that are gender neutral. "If you have the space, isn't it worth it, rather than tick people off and get a lawsuit?" she asked.  Make sure, though, that this resolution really will accommodate the workers and that the one using the unisex bathroom won't be disappointed she can't still use the women's bathroom.

LGBT Rights

Employers need to tread carefully here, as LGBT individuals may file lawsuits under a host of laws.

True, no federal statute explicitly sets out the right to use a bathroom of one's choice for LGBT individuals, Bunting noted.

But the Equal Employment Opportunity Commission (EEOC) interprets Title VII of the Civil Rights Act of 1964 as prohibiting discrimination based on gender identity, as a subset of unlawful sex discrimination. At least four appeals courts—the 1st, 6th, 9th and 11th circuits—accept this interpretation. Courts have been more skeptical of the EEOC's position that prohibited sex discrimination encompasses sexual orientation discrimination. Transgender individuals have more rights under federal law than lesbians and gays, she said.

The Supreme Court ruled in Price Waterhouse v. Hopkins (490 U.S. 228 (1989)) that Title VII prohibits sex stereotyping. So, a male employee can't be discriminated against for acting "too feminine" and a female employee can't be discriminated against for being "too masculine." This decision jibes better with gender identity discrimination than sexual orientation discrimination, as transgender individuals are likelier to be perceived as not conforming to norms for their sex, while gays and lesbians may not be considered "too feminine" or "too masculine."

While the scope of Title VII's coverage is an open question, 22 states and the District of Columbia prohibit sexual orientation discrimination, 19 states and the District of Columbia prohibit gender identity discrimination, and 200 municipalities have their own anti-discrimination laws, Bunting pointed out.

Plus, President Donald Trump has announced that he is not going to rescind former President Barack Obama's executive order prohibiting federal contractors from discriminating on the basis of sexual orientation. The state of the law is exceedingly complicated and fluid, she said.

Prohibitions on Religious Discrimination

The bedrock law protecting individuals from religious discrimination also is Title VII, which explicitly prohibits such discrimination and requires employers to accommodate employees' religion. Individuals may claim that their religious beliefs conflict with the rights of LGBT individuals, such as the right to use a bathroom that aligns with their gender identity.

[SHRM members-only toolkit: Accommodating Religion, Belief and Spirituality in the Workplace]

In addition, the Religious Freedom Restoration Act (RFRA) exempts employers from nondiscrimination requirements if they can show the EEOC's enforcement substantially burdens their ability to conduct business under sincerely held religious beliefs, Bunting noted.

Nineteen states have religious freedom laws of their own. Expect more litigation under laws protecting companies and individuals from religious discrimination, according to Bunting.

On Feb. 16, a Texas administrative law judge filed a Title VII complaint claiming that the Social Security Administration failed to accommodate his religion when it required him to watch a 17-minute video on the LGBT community or, as an accommodation, read the transcript. He refused to do either.

This type of claim could be coming to your workplace, she cautioned, asking the audience, "How would you handle it?"

Minimize Exposure to Liability

Sometimes employers will be sued regardless of what they do, Bunting said. But employers can take steps to help minimize their exposure to liability.

She recommended that employers:

• Update policies more frequently than once a year to stay in compliance.
  
• Keep hard copies of policies and employees' signed acknowledgments of their receipt so they are ready for lawyers to use as evidence when defending companies from claims.
  
• Notify employees of any revisions. Post them in break rooms and consider redistributing the handbook or individual policy.
  
• Train the supervisors, who should not be the ones accommodating employees but who instead should be taught to send accommodation requests to HR.
  

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