Employment vs. Religion vs. Freedom

It’s always entertaining to me when an employer suspends or fires an employee for something they said, and whoever disagrees with that decision comes back with an argument of “there’s supposed to be freedom of speech and freedom of religion in this country.” For starters, the protections afforded by the constitution are to keep the government from infringing on free speech or on one’s practice of religion. You’re not supposed to be arrested for expressing your opinions or for your religious practices, but there are times you can be fired for them. Apparently lots of people don’t know that those protections don’t necessarily extend into the workplace.

Although sometimes they do. Here’s something else a lot of people don’t know: the National Labor Relations Board protects employees who complain about their work environment – including how little they get paid or how much they hate their boss – whether they are a member of a union or not. I’ve had to tell many a manager: “I’m sorry Johnny called you nasty names on Facebook, but you can’t fire him for it.” It’s not freedom of speech technically that applies, but this kind of behavior is considered “concerted activity” and therefore protected by the same set of laws that protects union organizing.

That said, an employer can fire someone for something that violates a company policy, discloses proprietary information, confidentiality of its customers, or in some way causes significant harm to the company’s reputation. You can also get fired if your views seem to be largely counter to the mission of the organization and they believe those views make you unable to perform your duties, even if, say, those views would otherwise be protected under laws barring discrimination on the basis of religion.

The article that got me thinking about this was about Kevin Cochran, who was recently fired as Atlanta Police Chief because of a book he wrote on his religious beliefs, which includes condemnation of homosexuality. The left has responded with a focus on the mayor’s argument that he can’t have a city official publicizing his views which may be counter to the city’s official non-discrimination policy, and that he didn’t get permission to publish the book as required by city policy. The right’s response focuses solely on the alleged discrimination for his religious beliefs.

All of the outcry has of course led to increased sales of the book as indicated by the reviewers on Amazon who had never heard of it before. Their reviews indicate they aren’t familiar with the basic concepts of freedom of speech either. I’m having flashbacks to the Duck Dynasty hubbub where so many cried “freedom of speech” and I was just as amused how many people got it wrong – including the governor of Louisiana.

But back to Atlanta. Mr. Cochran’s book, according to the Amazon reviews, is a refreshing piece of work for those interested in the subject matter. It’s not something I’m likely to read – you already know I don’t “do” religion if you read my blog from February 8 – and that he equates homosexuality to bestiality and pederasty automatically makes me hear Bill Engvall saying “here’s your sign.” I actually don’t really mind it when people use their religious beliefs as their reason for being uncomfortable with the gays – to each his own and all that. But when those beliefs are based in ignorance, and using the B and P words in the same breath as gay is nothing but that, my eyebrows are going to go up and I will immediately discount pretty much anything else associated with said ignorance.

Which leads me to wonder how it is that the chief of police could function effectively with these points of view. As police chief, will he not care about gay bashing either because of his beliefs? This is perhaps what lends credence to the mayor’s view that he no longer believes he can uphold the duties of the office, especially when it comes to the nondiscrimination policy, which of course includes both religion and sexual orientation. Mr. Cochran is now suing the city for discrimination based on religion, that he was fired simply for expressing his religious beliefs.

Except that wasn’t all he did. He passed his book out to his employees at work, and one of them was offended enough by its content to complain, and that’s how the whole thing got started. If he were a rank and file officer, it’s possible no one would have cared. But when you’re the top executive, it’s a very different thing. Like it or not, you are going to be held to a higher standard.

We’ve established that the freedom of speech argument is a non-starter. But his lawsuit is claiming he was fired for his religious beliefs, which is illegal under Title VII of the Civil Rights Act. If it gets all the way to court without settling first, I will pay attention with great interest. If I had to make a wager today, I would bet he will lose.

For the employment law course in my HR master’s program, I wrote a paper called “Conflict in Employment Protection: Sexual Orientation vs. Religion.” There have been several cases over the years where employers have been sued for taking action against an employee who was expressing religious views in the workplace. A couple of examples:

  • An employee harasses gays in the workplace, expecting to be protected by religious freedoms. The court sided with the employer, who has a duty to protect all employees in the workplace, and offered the harassing employee many opportunities to stop the behavior before terminating him.
  • An employer requires all employees to sign a statement “valuing diversity,” including sexual orientation. An employee objects to signing it without a discussion about what “valuing” means – what behaviors must he demonstrate? He wanted to make sure the expectations in the workplace didn’t conflict with his religious beliefs. The employer did not entertain the discussion and fired him instead for not supporting company values. The employer lost for being unreasonable. Religious accommodation in the law requires an interactive process which they failed to engage in.

When cases involve conflicts in civil rights protection – you don’t get much grayer than this, by the way – the courts will generally try to look at the argument from a greater good sort of perspective. In the first case above, the employer’s duty to provide a harassment-free environment to all of its employees trumped the individual’s religious beliefs. In the second case, the employer failed to even discuss options with the employee, which does not serve the greater good at all.

Yes, everyone is entitled to their beliefs. Yes, the government can’t interfere with one’s religious practices. And yes, employers are barred from taking adverse employment action based solely on religion. This is essentially what Cochran is claiming, and I don’t think it will stand up. If he hadn’t passed the book out at work, it might not have been a thing. But when the top executive is clear in his ignorance about a certain portion of the employee population, and makes that widely known, it’s going to cause problems. And that’s what the mayor acted on.

Get your popcorn ready. It will be fun to see how this one plays out.

Epilogue: He won part of the case. The court rejected the city’s argument that he had to get permission to print the book first, because that was too much of an infringement of his freedom of speech. However, they rejected his claim that his rights to free speech and freedom of religion were violated by his firing.

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