The Kentucky Clerk who has refused to issue marriage licenses to same-sex couples is going to jail. She has tried to justify her refusal to perform her job on the ground that to do so would violate her religious beliefs as protected by the Constitution.
Good thing employers do not have to deal with this kind of issue. Or do we?
By way of background, in Obergefell, the Supreme Court struck down Section 2 of The Defense of Marriage Act (“DOMA”). More specifically, the Supreme Court held, in a 5 to 4 decision, that the constitutional right of marriage covers same-sex couples so that no state can deny them the right.
While the decision on its face applies only to states in terms of recognizing same-sex marriage, as a practical matter, for complicated legal reasons, employers generally will have to offer same-sex spouses the same coverage as opposite-sex spouses. While employers with self-insurance plans may have a little more flexibility, there are substantial discrimination risks in treating same-sex spouses differently. In this regard, the EEOC has taken the position that Title VII’s prohibition on sex discrimination covers sexual orientation.
With this background, we return to who may be your “Kentucky Clerk.” It may be a human resources employee who handles employee benefits.
The employee may claim that processing benefits for same-sex spouses violates his or her religious rights. The rights would not be constitutional but statutory.
Title VII of the Civil Rights Act of 1964, and comparable state and local laws, require that employers make reasonable accommodations with regard to sincerely held religious beliefs, practices or observances. However, no accommodation must be made if it would impose an undue hardship on the employer.
Although an employer’s reasonable obligation duty is narrower under Title VII than under the ADA, the starting point is the same. Is the task an essential part of an employee’s job?
If an employee’s job is to process employee benefits, it is not likely that the employer would have to eliminate this essential function as applied to same-sex spouses. Analogy: an employee would have to process dependent benefits for the child of a single parent (who never married), even if the employee sincerely believed that sex outside of marriage is a sin.
When could a religious accommodation apply? Assume an employer has an LGBT recognition day celebrating, among other things, same-sex marriage. It would seem that exempting an employee from working on this one-time event likely would be a reasonable accommodation.
In the first case, the employee should not be belittled or accused of discrimination. It may just be that the employee’s religious beliefs are incompatible with the job, just as not working on Saturdays for religious reasons is incompatible with another job. The employee should be told what he or she must do or he or she will be separated.
In the second case, if the employee is accommodated, the employer should do so without disrespecting the celebration.The employee can be told that we are glad we can accommodate your religious beliefs and celebrate the joy of others at the same time.
This kind of clash of rights will arise in myriad contexts. There is no one-size-fits-all answer, except that respect must be the guard rail for how the decision is implemented.
Reprinted with the permission of SHRM (blogs.shrm.org). You can follow Jonathan on Twitter at @Jonathan_HR_Law
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment, Labor, Benefits and Immigration Practice Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, benefits administrators and managers at Duane Morris, at client sites and by way of webinar on myriad employment, labor, benefits and immigration matters.
