An increasing number of workers are seeking faith-based accommodations with respect to workplace diversity, equity, and inclusion policies, adding an extra wrinkle to an already tricky legal landscape.

Companies have adopted DEI programs to help weed out bias against historically marginalized workers and attract and retain an inclusive workforce, even where individual personnel decisions aren’t based on race or other protected categories.

But there’s been an upward trend in worker defiance against participating in workplace DEI programs or anti-bias training—some of which are mandated by state law—on the basis that they clash not just with their political views, but with their religious convictions, attorneys told Bloomberg Law.

These religious accommodation requests add to pending legal challenges over workplace inclusivity policies like the use of a co-worker’s preferred name and gender-affirming pronouns.

And they come at a time when diversity measures have become a political hot-button issue that’s attracted legal threats and lawsuits, especially following the US Supreme Court’s decision last June banning the use of race in university admissions.

“Companies are put in this very hard rock and a hard place right now,” said Sara H. Jodka of Dickinson Wright PLLC. “There’s been a number of these cases. Lots of them.”

This introduces another layer of headaches for employers, which now must walk a tightrope balancing workers’ sincerely held religious beliefs with the rights of members of other protected groups like racial minorities.

“The conversations on these issues are hard because we have protected rights going against each other,” Jodka said. “It’s like, ‘Whose rights get to win? Who gets to trump who?”

New Accommodation Standard

The issue of faith-based objections to DEI policies could get the Supreme Court’s attention, especially after the justices last June established a new standard making it more difficult for employers to reject workplace religious accommodations under Title VII of the 1964 Civil Rights Act, attorneys said.

Groff v. DeJoy held that an employer cannot deny a religious accommodation unless it can show that the burden of granting that accommodation “would result in substantial increased costs” to the business.

“Pre-Groff, it was a very low burden” that employers had to meet to deny a religious accommodation, said Frost Brown Todd LLP partner Jonathan M. Werner.

Now, employers facing religious objections to their DEI policies must approach these issues with respect and sensitivity, he said.

The lower courts will have a chance to apply that new standard in the DEI context, attorneys said.

For example, a case against Compass Group USA pending in California federal court alleges that a human resources employee was fired for refusing, on religious grounds, to administer the company’s diversity program.

In a court filing, plaintiff Courtney Rogers said she has “sincerely held religious beliefs, based on deeply and sincerely held religious, moral, and ethical convictions, that people should not be discriminated against because of their race.”

Charles S. LiMandri, an attorney for the plaintiff, said in an email that Rogers is a Christian. His firm, LiMandri & Jonna LLP, is acting as special counsel for the Thomas More Society in the lawsuit.

There’s nothing inherently discriminatory about programs designed to boost workforce inclusion and diversity, as long as individual personnel decisions aren’t based on race, attorneys have told Bloomberg Law.

Compass Group’s program of offering mentorship and training only to women and people of color would, if the allegations are true, illegally exclude people based on their race, the attorneys said.

But some expressed skepticism about whether the plaintiff’s religious bias claim will hold up in this context.

The case “is complicated by the fact that the company decided to have DEI programs and opportunities that allegedly excluded White males. That is the source of the problem, not typical religious issues,” said Vito A. Gagliardi Jr., co-chair of Porzio, Bromberg & Newman PC’s employment and labor practice.

The plaintiff raised claims under federal and state anti-bias law, but the suit “looks like a clear whistleblower case otherwise,” Gagliardi said.

Interactive Process

Pending judicial rulings on misgendering in the workplace could give courts and employers a “roadmap” on how to handle religious objections to workplace DEI policies, Jodka said.

But in the meantime, employers should engage in an interactive process with the worker who raised the religious objection and review the policy at issue to determine what the employee could be excluded from, she said.

Employers should ensure their DEI plans “align with what they are legally required to do and what makes sense for the workplace,” she said.

Groff is seen as a victory for adherents of minority faiths like Jews, Muslims, and Sikhs, whose accommodation requests are more likely to face headwinds because their worship, grooming, and dress requirements aren’t always the norm and may conflict with corporate policies.

However, some attorneys said there may be an unintended consequence of expanding the role of religion in the workplace to the detriment of marginalized employees—who themselves may be religious.

“I think this is an area where courts are going to tread very carefully,” said Gary M. Gilbert, principal of Gilbert Employment Law PC.

“They’ve always given great deference to an employer’s judgment on how to conduct their business,” he said.

Source : Blomberg Law

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