As corporate America becomes more progressive and less tolerant of religious beliefs and practices, the federal agency tasked with enforcing laws that protect the rights of employees seems less inclined lately toward protecting the rights of those who are religious.
Last month, the Equal Employment Opportunity Commission released a draft Strategic Enforcement Plan, or SEP, for public comments. The SEP will establish the EEOC’s upcoming enforcement priorities to “prevent and remedy discrimination in the workplace.”
Recently, First Liberty Institute submitted comments on the draft plan, encouraging the EEOC to include in its express goals that it protect employees from discrimination based on their religious beliefs related to sexuality and abortion, objections to vaccines, and the free expression of those beliefs.
First Liberty is a nonprofit law firm dedicated exclusively to defending religious liberty for all Americans.
The comments pointed the EEOC to several current First Liberty religious discrimination cases that are troublesome. In each, employees of either large corporations or the government have seen their civil rights violated because their beliefs conflict with their employers’. This is the very kind of discrimination the EEOC is designed to combat.
For example, Marli Brown and Lacey Smith were flight attendants fired by Alaska Airlines for simply posting comments in an internal forum expressing religious concerns about the proposed Equality Act, a bill that, among other things, would remove some protections of federal law for religious individuals and employers. It could create potential conflicts in the workplace and the public square with religious views about traditional marriage, sexual morality, and the biological differences between men and women.
Robyn Strader, a nurse practitioner, was fired by CVS after that company rescinded a religious accommodation allowing her not to prescribe contraceptives. Several other former CVS employees have also filed complaints with the EEOC or lawsuits against the company alleging discrimination because CVS denied them a religious accommodation.
In another case, Valerie Kloosterman, a physician assistant, was fired by the University of Michigan Health System after she sought a religious accommodation from referring patients for so-called gender transition procedures and experimental drugs, and from using biology-obscuring pronouns.
And finally, Stephanie Carter, a nurse practitioner at a veterans’ hospital in Texas, filed a federal lawsuit after the Veterans Administration denied her religious accommodation request to not participate in abortions under a new VA interim rule allowing abortions at VA facilities.
These are just a few of the examples of the need for the EEOC to use its enforcement powers to help employers understand that they can employ workers with diverse views on religion and sexuality without discriminating.
Particularly in the wake of the U.S. Supreme Court’s decision in Bostock v. Clayton County, which interpreted federal law to prohibit employers from discriminating on the basis of sexual orientation, First Liberty asked that the EEOC provide direction to employers about how to protect employees from religious discrimination along with other forms of discrimination.
In addition, our comments noted that where the Strategic Enforcement Plan highlighted several protected classes upon which the COVID-19 pandemic and its economic fallout had “a disproportionate impact,” it overlooked the impact on religious employees. Many religious employees were forced to choose between complying with a vaccination mandate in violation of their sincerely held religious beliefs or losing their jobs.
EEOC has a history of advocating on behalf of employees seeking religious accommodations regarding the flu vaccine and even recently filed such a case against Children’s Healthcare of Atlanta. However, it has not brought any lawsuits against an employer who denied a religious accommodation from the COVID-19 vaccine.
We also recounted the increase we have seen in requests for help from employees who were fired because of private social media posts reflecting their religious convictions. We encouraged the EEOC to prioritize educating both employers and employees in this area.
Employers need to be educated about the right of employees to communicate their religious beliefs about what is important to them to the same extent they are permitted to communicate their non-religious beliefs about what is important to them. And employees need to be educated about federal laws that protect them from adverse employment action on the basis of their religious beliefs or conduct.
Finally, we encouraged the EEOC to address the concerning trend of employers starting with a presumption that their employees’ religious beliefs are insincere and that they are merely claiming them to get some kind of accommodation, rather than with a presumption of sincerity.
Employees should not be forced to choose between their faith and their livelihood. The EEOC plays an important role in ensuring that no workers face that Hobbesian choice. Consequently, it needs to prioritize protecting the civil rights of religious employees.
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