Portland’s New Law Adds Job Protections for Atheists

 

Jathan Janove, J.D. By Jathan Janove, J.D. March 29, 2019
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Portland, Ore., has long prohibited religious discrimination in housing, employment and public accommodation—but now the city will also expressly protect the nonreligious, including atheists, agnostics and others that don't believe in a particular religion.  

Although discrimination based on the lack of religious beliefs is prohibited under Title VII of the Civil Rights Act of 1964, the Portland law, which was first proposed by the local chapter of the Freedom From Religion Foundation, makes this protection clear. "We often encounter managers and supervisors who simply do not know that atheism is protected," said Blerina Kotori, attorney with Tonkon Torp in Portland.

Starting March 29, Portland law prohibits discrimination in housing, employment and public accommodation on the basis of nonreligion, which includes "atheism, agnosticism, and nonbelief in god or gods," according to the city's code. The law largely mirrors a 2015 Madison, Wis., ordinance, which the Freedom From Religion Foundation also initiated.

"Just as someone could claim to have been discriminated against because of their religion, Portland employees may now assert legal claims based on nonreligion," said Sean Driscoll, an attorney with Lewis Brisbois in Portland. For example, a job applicant could claim that a prospective employer did not hire her because she is an atheist, an employee could claim that he was harassed because he is an agnostic, or an employee could claim he was fired by his religiously devout supervisor because of his lack of faith.

Like for claims of religious discrimination, Portland employees can file complaints of nonreligion discrimination with the Oregon Bureau of Labor and Industries or sue their employers. Potential remedies are the same as those for other forms of employment discrimination that are prohibited under state law, and employees may be able to recoup attorney fees and costs.

Exception

Religious-based organizations may continue to factor religion into their employment decisions. Oregon law allows churches and other religious institutions, including faith-based schools and hospitals, to prefer an applicant of one faith over another.

For instance, earlier this year, the Oregon Court of Appeals rejected a religious-discrimination claim brought by a Jewish professor who was not hired by a Christian college because of his religion.

The Portland ordinance incorporates this state-law exception.

Impact

Statistics about Portland's residents who identify as "religiously unaffiliated" suggest that the city may be more likely to see legal action than other locations. In a 2015 nationwide survey conducted by the Public Religion Research Institute, 42 percent of Portland's residents identified themselves as religiously unaffiliated (atheist, agnostic or no religious belief in particular). This ranked Portland as the most religiously unaffiliated major city in the country.

"It used to be that employees ordinarily did not debate politics or religion at work," Kotori said. "That atmosphere is changing, and as those topics become more frequent in the workplace, employers will need to strike a balance between supporting employees of all religions, including atheists, agnostics and other nonbelievers, and observing workplace rules and standards."

[SHRM members-only toolkit: Introduction to the Human Resources Discipline of Diversity]

Kotori said that with the new law in place, Portland employers should expect more workers to feel comfortable expressing that they do not believe in a god or gods. "Similarly, more employees may request relief from religious employment practices, such as prayer."

Driscoll can imagine a scenario with dueling religious-harassment complaints in which an employer would be fearful of choosing a side, "for example, an argument between an atheist and an evangelical that turns bitter."

Practical Suggestions

Driscoll recommends that businesses treat nonreligion like any legally protected status. "Update policies to prohibit discrimination on this basis, and train both managers and line employees on company policies and complaint procedures," he said.

Employers should also remind hiring managers and other interviewers that the topic of religion (and nonreligion) is off limits with job candidates. If an applicant brings up his or her religious faith or lack of it, interviewers should steer the conversation to work-related issues, Driscoll added.

Kotori recommends that employers ensure that managers, supervisors and HR professionals know how to spot and handle potential issues.

She also recommends reviewing whether there are any workplace practices that have religious overtones that employees must attend. For example, do any company or client events begin or end with prayer? Are employees required to attend the office Christmas party? 

"If so, employers should reconsider whether to maintain the practices, revise them or not make attendance compulsory."

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